The 13th Amendment at 150: Emancipation, America’s Second Founding, and the Challenges That Remain
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The 13th Amendment at 150: Emancipation, America’s Second Founding, and the Challenges That Remain


>>David Ferriero: Good evening. I’m David
Ferriero, the Archivist of the United States. It’s a pleasure to welcome you this evening
to the William G. McGowan Theater here at the National Archives and Records Administration
for tonight’s examination of the 13th Amendment upon its 150th anniversary. We’re very glad
we that you could be with us whether you’re here in the theater or joining us on our YouTube
Channel. I want to take this opportunity to acknowledge
our partners for tonight’s program, the Constitutional Accountability Center and the National Constitution
Center. I thank them for their support. Before we get to this discussion tonight I’d
like to tell you about two programs coming up in the next few weeks here at the National
Archives. On Wednesday, December 9, at noon, author Andrew Jampoler will talk about his
new book, “Embassy to the Eastern Courts.” It chronicles the secret mission to negotiate
with Eastern [Inaudible] during Andrew Jackson’s presidency. And next month, Friday, January15,
at noon, we’ll present two films from our motion picture holdings in honor of the 75th
anniversary of the Tuskegee airmen. To learn more about these and all of our programs and
exhibits, consult our monthly Calendar of Events in print or online. There are copies
in the lobby as well as a signup sheet where you can receive it by regular mail or email.
Tonight we examine the 13th Amendment to the Constitution which put an end to slavery in
the United States. Interestingly, although the Constitution as passed in 1787, sanctioned
slavery, notably with a section on the slave trade, the ThreeFifths Compromise and Fugitive
Slave Clause, the word slavery did not appear in the document until the 13th Amendment.
In this building we hold the Joint Congressional Resolution proposing the amendments to the
states, the certification that the amendment had been ratified in 1865, and the ratification
instruments passed by the states. One of these, California’s, is on display upstairs just
outside the rotunda. Among the congressional resolutions proposing
constitutional amendments is one that could have been the 13th Amendment. This earlier
amendment proposed to the states in 1861 would have prevented Congress from passing any laws
interfering with the existence of slavery. One can trace the legacy of the 13th Amendment
through our records with the 14th and 15th Amendment, the Civil Rights Act, Voting Rights
Act, Supreme Court decisions on civil rights, and much, much more.
Within the National Archives we preserve important highlevel documents such as these but we also
contain records created on a more personal level. Through the Freedman’s Bureau records,
pension affidavits, and court testimony we hear the voices of those who lived through
trying times and struggled to gain the rights guaranteed to every American citizen. Great
and small these records are our national legacy and it’s a great honor to preserve them here
at the National Archives. Now it’s my pleasure to welcome Judith Schaeffer
to the stage. Judith is Acting President of Constitutional Accountability Center. Before
joining the center she served as the Legal Director for People for the American Way.
Previously she was a partner at Dickinson Shapiro & Morin and a law clerk for Chief
Judge Joseph S. Lord III of the United States District Court in Pennsylvania. Judith is
a recipient of the Lambda Legal Defense and Education Fund Attorney Appreciation Award,
the Whitman-Walker Clinic Gene Frey Memorial Award for Community Service, and the Women’s
Legal Defense Fund Volunteer Attorney Award. Please welcome Judith Schaeffer.
>>[Applause]>>Judith Schaeffer: David, thank you so much
for that gracious introduction. Welcome, everybody. Good evening. On behalf of Constitutional
Accountability Center, I want to thank you very much for joining us tonight for what
is going to be a very exciting discussion about the 13th Amendment and the continuing
importance of all three of the transformative Reconstruction Amendments.
Before we begin, I’d like to thank the National Constitution Center let me thank the National
Archives first, I’m sorry, and their terrific staff and support for this event. I can’t
think of a better place to celebrate and discuss our Constitution than the building where it
resides, upstairs as David just said. I also want to thank the National Constitution
Center and their President, Jeffrey Rosen, for partnering with Constitutional Accountability
Center in a fiveyear celebration of the 150th anniversaries of the Reconstruction Amendments
celebration we call the Second Founding Project. I’ll explain that title a moment.
Let me also thank the National Endowment for the Humanities which has been so supportive
over our Second Founding Project. I want to recognize their deputy chair who is here tonight.
Peggy, thank you so much for joining us. Finally, I want to extend our deep gratitude
to all of our outstanding panelists for taking the time to be here and share their opinions
and expertise. So why are we here on this particular Monday
of December? We’re here because yesterday, December 6, was the 150th anniversary of the
ratification of the 13th Amendment in 1865, the first of three amendments secured by President
Lincoln’s generation in the five years following the Civil War. These amendments, the 13th,
14th, and 15th so fundamentally transformed our Constitution that many scholars appropriately
described them as our nation’s Second Founding. These amendments ended slavery, guaranteed
equality and citizenship, expanded the right to vote, prohibited racial discrimination
in voting, and ensured that the national government has the power necessary to secure civil rights.
In short, the Reconstruction Amendments gave our nation what President Lincoln promised
at Gettysburg, a new birth of freedom, enshrining in a central place in our Constitutional order
the selfevident truths about equality and liberty set out in the Declaration of Independence.
Nearly three decades ago America came together to celebrate the bicentennial of the 1787
Constitution. As the Second Founding turns 150, we are working with our partners at the
National Constitution Center, our Honorary Chair, Justice Sandra Day O’Connor, leading
scholars, and a growing list of organizations like the National Endowment for Humanities
to build a fiveyear celebration worthy of the Constitutional achievements of President
Lincoln and his generation. The Second Founding Project was the brain
child of Doug Kendall, Constitutional Accountability Center’s Founder and President. Doug recognized
that most Americans know very little about the Reconstruction Amendments and the critical
role that they played in our country’s history and continue to play today. Doug was determined
to change this, to help educate Americans about the Reconstruction Amendments and about
their vital importance today to celebrate them and to see to did that these three amendments
set of public recognition and place of prominence in our national consciousness that they deserve.
Doug knew that the series of 150th anniversaries coming up over these next five years would
provide the perfect opportunity for education, discussion, and celebration. Indeed, on Friday,
the White House issued a proclamation marking the anniversary of the 13th Amendment, explaining
its transformative importance and calling on the people of the United States to observe
the day with appropriate programs, ceremonies, and activities.
Very sadly, Doug passed away in September at far too young an age. But Doug’s work lives
on through the Second Founding Project and everything else that we at Constitutional
Accountability Center do every day to promote the progressive promise of the Constitution’s
text and history. This evening is a celebration of Doug’s vision as well as of the 13th Amendment.
I know that Doug absolutely would have loved tonight’s discussions.
Let me now turn things over to Jeff Rosen, President of the National Constitution Center
and our wonderful moderator for both of tonight’s panels.
Thank you for joining us this evening.>>[Applause]
>>Jeffrey Rosen: Let me welcome our panelists who will come up appropriately.
Ladies and gentlemen, seeing Doug Kendall behind us, made me recall the day, two years
ago, soon after he realized that he was ill, when he conceived of this Second Founding
Project. And Doug Kendall was a visionary. And he believed that it was important in these
polarized times to educate all Americans about the history and contemporary meaning of the
Reconstruction Amendments. He believed too little is known about them. And he came up
with the idea of creating a National Advisory Board chaired by Justice O’Connor to bring
the best thinkers in America, liberal and conservative, and everyone in between, to
unite around the three Charters of Freedom that all of us share as Americans. He realized
that we may disagree about their contemporary meaning but we are bound in unity in union,
that crucial word that Lincoln used so much, by the notion that this was the crowning constitutional
achievement of the Civil War. And he, with his breath of vision, conceived of a fiveyear
initiative where we would use these anniversaries to hold events just like this to educate citizens
about their constitutional history. And he would be smiling because here we are at the
National Archives, the day after ratification, with this extraordinary group of panelists.
You have two panels of the finest judges and thinkers in America about the 13th Amendment.
He would be proud of us. I’m so glad that we’re here.
I want to jump right in. Let me just do what Doug always expected me to do which is to
recite the Congressional Charter of the National Constitution Center. The National Constitution
Center is a beautiful, nonprofit on Independence Mall in Philadelphia, right across from Independence
Hall, with the most beautiful constitutional views in America. And it was created during
the bicentennial of the Constitution to disseminate information about the U.S. Constitution on
a nonpartisan basis. And that is what we do every day and in every media platform, creating
the best interactive constitution on the web that’s united the finest liberal and conservative
scholars to write about every clause of the Constitution describing what they agree about
and what they disagree about. And you can read about the Reconstruction Amendments there.
We have panels and symposiums like this one and this beautiful museum of We The People
that has a copy of the 13th Amendment signed by Abraham Lincoln and loaned to us by David
Rubenstein. We’re thrilled by this partnership and are
looking forward to a phenomenal series of discussions over the next five years.
Let me briefly introduce these magnificent panelists. Because you’re in for a treat in
this discussion. Starting from my right, Judge Jeremy Fogel is the Director of the Federal
Judicial Center in Washington, D.C. As a senior judge for the U.S. District Court for the
Northern District of California, and he just presided over at the National Constitution
Center the most spectacular twoday symposium about the history and meaning of Reconstruction
which united about 30 judges in the country, including Judge Donald. We’ll talk more about
it but it was one of the most meaningful and intense and moving experiences.
The great Sherrilyn Ifill, NAACP Legal Defense and Education Fund, her predecessors include
Charles Hamilton Houston and Thurgood Marshall. It is a pretty distinguished group.
>>Sherrilyn Ifill: No pressure.>>Jeffrey Rosen: No pressure at all. We were
absolutely thrilled that she recently agreed to join the board of the National Constitution
Center. We’re thrilled to have her in the family and very glad that she’s here.
The great Judge James Wynn. You came up with the idea of having this panel in particular.
You said we’ve got to do it right the day after ratification. I said, yes, we’ve got
this initiative. You had the vision of bringing us together. He is the judge on the U.S. Court
of Appeals for the Fourth Circuit and among his many distinctions I think it’s cool that
you served in the U.S. Navy JAG Corps as a Captain.
And Judge Bernice Donald, who I was so lucky to spend time with in Philadelphia a few weeks
ago, is a judge on the U.S. Court of Appeals for the Sixth Circuit. She was the first female
African American judge in the history of Tennessee. And she was confirmed in 2010.
Judge Wynn, because you brought us here in some sense, I do I do have to read the amendment
because we’re going to be talking a lot about it. So let’s remind ourselves what it says.
I can either scroll down or go to this thrilling National Constitution Center pocket Constitution
with an absolutely riveting introduction by yours truly and David Rubenstein about the
documents. The only problem is I can’t read it anymore unless I hold it far away.
Here it goes.>>I’m glad to help.
>>Jeffrey Rosen: You know it by heart, I’m sure. I should.
Neither slavery nor involuntary servitude except as a punishment for crime where of
the party shall have been dually convicted shall exist within the United States or anyplace
subject to the jurisdiction. And section 2 says Congress shall have power to enforce
this article by appropriate legislation. Judge Wynn, why is that text important and
why is it meaningful for Americans to learn about it and celebrate?
>>Judge James Wynn: Thank you, Jeff. I’ve got to say thank you, Jeff, Judy, and Dave
for attaching the level of significance to this time period for the 13th Amendment. Two
reasons. The first reason being it is without question the most important date in African
American history by definition. The abolition of slavery has to be the most important date
in African American history and it most assuredly happened December 6, 1865. The second reason
is the basic rule of law and the force of law of what it has in our society; that it
was not through a proclamation, wasn’t through celebration, wasn’t through individual emancipations
but only by changing the sovereign will of the people you can change the law of a nation.
When we go to other nations, we try to have them to follow the rule of law. And by following
the rule of law, we change, in the words of Hamilton Houston, in the words of Barney from
Rosco to Thurgood Marshall up to the Brown v. Board of Education decision, we changed
society and if you will, the term some have forgotten, sociological engineering. And this
is not it but it says to change the laws and the habits of a world and of the nation you
change the law. That’s an appreciation that law students need
to have, lawyers, and all legal types on a micro level in our nation. It has significance,
tremendous significance, that changing the Constitution is how you change the character
and you change the social laws of a nation.>>Jeffrey Rosen: Beautiful.
Judge Donald, would you add anything to that? Why is the 13th Amendment significant and
was it significant just by itself or was it also important to have the 14th and 15th Amendments
to fulfill the promise of the Civil War?>>Judge Bernice Donald: Thank you so much.
I am so delighted to be here with this esteemed panel. Thank you for the question.
I think it has significance that really extends far beyond that. I want you to think about
the words of Lincoln. He said that no nation can stand half slave and half free. I want
you to think about the eloquent founding documents that talk about freedom, men and women being
created equal. Those ideals cannot really stand alongside a nation that enslaves its
people. And at some point we as a nation, I think, had to live up to those founding
documents. I recognize that we’re still in that struggle.
You read the words of the 13th Amendment. It is critical to think — when you look at
those words, one of the things you do not see or hear in those words is any mention
of the word equality. So while we have the abolition of slavery, that was not an end
of it itself. The 14th was necessary because that came back to talk about equality. You
can have abolition, and that was an important step, crucial, as Judge Wynn said, but that
alone doesn’t do it. Because you have a people who have been subjugated, slaved, for a couple
of centuries. And it’s important to abolish. But then what?
One of the things that the Congress and others were concerned about, well, even if we do
this, does this mean that those black people, those former slaves, all of a sudden are going
to consider themselves equal to whites? And that was something that people had to sort
of get their heads wrapped around. But the 14th Amendment came back and spoke
to equality and to justice. So I think the 13th, 14th, and 15th are important but they
were necessary to move us along that road to ultimate equality.
>>Jeffrey Rosen: Wonderful. J Judge Fogel, so much happened at that incredible
symposium that you created — and kudos to you for bridging that great group together.
But focusing on the history, what did you learn? What surprised you most about the discussions?
What did you learn about the 13th Amendment and what do you want to share with the audience?
>>Judge Jeremy Fogel: I want to join everyone to say how happy I am to be here and honored
to be here with this group on stage. I learned in preparing for the program in
Philadelphia, I did a lot of study of Reconstruction and learned that so much of what happened
was something I had never been taught; that our collective history as a country you might
have learned there was sort of an orthodox history for a while; that there were carpetbaggers
and scalawags going into the south and exploiting the poor southerners. We didn’t learn about
what actually happened. And I think getting prepared for that and I don’t mean to slight
that there were people who suffered in the south, too, because there were. It was just
getting a better sense of that history I think that was one of the most important things
for me. But then you have these aspirations that you abolish slavery, that you try to
ensure equal protection of the laws, you try to ensure voting rights. And this all happened
150 or so years ago. And then you look at what actually happened. Those goals were aspirational
then and are aspirational now. So what came out in the conversation as Jeff
said, we had 30odd judges there. We were very deliberate in inviting people from all different
backgrounds. We really strove for diversity of every conceivable kind. And what we found
was people had very different life experiences and that they didn’t know much about each
other’s life experience. Sure, we all want to be equal, all want to respect the law,
but the real equality of what it’s like to grow up in this way or that the way and the
differences growing up this way or that way have, so the effect those differences have
on us, was just really profound. And we don’t talk about it.
We still are separate in some way, unless we’re fortunate enough to have friends who
really open up to us. We don’t really know. And I’ll just if I might, just two simple
examples. There were a number of judges in the group, very accomplished people, national
leaders in the judiciary, who went to segregated schools and were old enough to remember that
experience. And we talked about it. There were people who Caucasian judges who were
serving in the south when the University of Mississippi was integrated, when the Birmingham
church bombings took place. And they talked about their experience as human beings with
these events. We don’t do this enough. We don’t begin to do this enough. So I think
that’s what I learned as a result of the program.>>Judge Bernice Donald: One comment. I think
Jeremy is absolutely correct. We tend to think of this is history and it was such a long
time ago. But as you observed, many of us who are still here right now, that’s part
of our lived experience. So it also speaks to recency. And we want to say, oh, it was
then, this is now, but it’s all this wedded together.
>>Jeffrey Rosen: As Judge Fogel said, hearing the judges talk about what it was like for
them. One judge had a relative who was a slave and then was talking about applying the law
and being in a courtroom with all white jurors and his efforts to diversify the pool and
the difficulty of doing that. It was very, very important to share those experiences
and was absolutely unforgettable. Judge Fogel mentioned the gap between the
promise of the amendments and their reality. You in an essay called “Freedom Still Awaits”
said eloquently, neither the enduring power of the Second Founding nor its limitations
can be fully understood without an examination of the Third Founding, the Civil Rights movement
of the mid-20th Century. Of course it was the NAACP Legal Defense and Education Fund
played such a crucial role in the crown jewel of that Third Founding, the Brown v. Board
of Education decision, but how did the Third Founding fulfill the promises and inadequacies
of the second?>>Sherrilyn Ifill: Thank you, Jeff. And I,
too, am just thrilled about this project, thrilled to be here with all of you, and actually
just incredibly moved by what you just said, Judge Fogel. One of the things you’re aware
of as a civil rights litigator is that you are appearing before judges who very often
do not know this history and really don’t know about this chasm that you’re describing.
At the outset there was this remark about how the original constitution did not mention
the word slavery, right? It was about the importation and migration of persons. There
was all of this delicacy, very deliberate delicacy. Because there was an understanding
that the word slavery did not go with all of the other highminded principles that were
in the document. So it is pushed to that moment after awful years of war and bloodshed and
decimation. But it is compelled to confront itself and it now has to use the word in that
document that the founders, the original founders who actually, most people learned quite a
bit about, did not have the courage to use. So it’s an important moment of America growing
up and having to confront what it had kicked down the road, right? The slavery cam was
kicked down the road with the original Constitution, the delicate language, the ThreeFifths Compromise.
All of the ways in which the issue of slavery was managed around in that original constitution,
not to confront this immoral core in the founding of our nation.
So you have the amendments which really do have to be read together because freeing the
slaves was not enough. As a matter of fact, the history is quite clear that most in the
south, most leaders in the south, white leaders in the south, hoped that even freedom would
not mean like the whole megillah, would not mean blacks were going to vote, would not
mean blacks were going to have property rights. Hope sprung eternal that there was still a
way to manage newly freed slaves as slaves without the formal title. So they do have
to be read of a piece. But the truth is, even those three amendments,
as monumental as they are and we can talk about the language of those amendments and
what makes them so important. I happen to think the enforcement clauses are just the
most revolutionary and powerful part of the amendment, but they are not it’s not realized,
really, until we get to the Third Founding. Because we know that after Reconstruction,
when we had this opportunity and a really great chance for America to be what it should
have been, we ended up with a backlash and with redemption and really beginning in the
late 1870s but certainly by the 1880s when the Supreme Court decides the civil rights
cases, pretty much a wrap and African Americans certainly in the south have been essentially
returned to a condition of slavery largely through share cropping. They do not have the
right of freemen even though they are technically free.
And the Third Founding is different than the Second Founding. It doesn’t require a formal
war but it does require the people to rise up and to give meaning to the words in the
amendments of the Second Founding. So it is once again a moment of confrontation.
Right now I hear people talk about nostalgia for the 1950s. Oh, America, if it could be
as great as it once was. Well, there were many great things about America in the 1940s
and 1950s but there were many not great things about America in the 1950s. And if you’re
a black person and you hear that, you’re thinking, well, who would I have been in that period?
Where would I have been? Who would my children have been? I’m letting you know, that’s what
we’re thinking when we hear people say that. So it was yet again a moment of confrontation.
One of the most poignant of those moments occurred in Selma, Alabama, with Bloody Sunday
when activists marched on the Edmund Pettus Bridge and were beaten. The CBS network interrupted
their showing of “Judgment at Nuremberg.” So America is watching for the first time
the broadcast of this film about the war crimes tribunals after World War II and they interrupt
and all of America gets to see this violence that’s happening, that African Americans have
been living with for decades. So it’s yet another moment of confrontation and maturation
for the country and what comes out of it are a whole series of civil rights statutes that
could only be created because of the enforcement clauses of the 13th, 14th, and 15th Amendment.
>>Jeffrey Rosen: That is beautifully said. I want you to react to that, judge. It’s a
powerful claim she has made. She says the Second Founding was really subverted by the
courts and by political resistance. It took the Third Founding to fulfill some of its
promise. You wrote an article for a Bar Journal in
North Carolina about the contributions of Charles Hamilton Houston, special counsel
for the NAACP. You called him a great social engineer, favoring more methodical approach
of the state and federal levels. Talk about him, about the Second Founding. And tell us
straight, you know, what was its achievement. How did it overcome the failings of the Second?
>>Judge James Wynn: I could talk all day long about the Second and Third Founding but
I want to focus on the 13th Amendment.>>Jeffrey Rosen: You can do that, too.
>>Judge James Wynn: This is where these discussions go. I get discussions about what’s going on
now but you don’t focus on the history of the 13th Amendment.
And I will tell you, Jeremy, you’re not the only one that know nothing about this amendment.
You could walk into any major African American group, any function and ask them what is the
date in which from AfricanAmerican slaves were freed and they couldn’t tell you. I mean,
they will look dumbfounded. You know why? Because we as Americans have been intentional
in creating what I say obituary history. You tell the good stuff and you leave all the
other stuff out. You don’t tell stuff like there were laws that prohibited African Americans
or freedmen and others from even preaching to slaves. And when I say prohibited, you
got lashes anywhere from 20 to 39 lashes on your back for preaching to a slave, whether
you were freed or not. Bareback. And that’s true whether you taught them to read or write.
That’s not in your books. So when you get down to the fact that the
Emancipation Proclamation from a legal how does a law student not know an Executive Order,
a proclamation is not law? How do you teach that? Even with the war problems, how do you
not understand what property rights means in the Constitution that any Supreme Court
will say no president can take away a property right? Those are the kinds of fundamental
things we are missing when we talk with the significance of the 13th Amendment.
And I would love to talk about Charles Hamilton Houston. I can take from you Barney to Thurgood
and all of it. But that’s another discussion. The 13th Amendment is what we ought to focus
on.>>Jeffrey Rosen: Great. I love your focus
on the text. You’re forcing me to be a good law professor. That means the rest of the
panel, let’s talk about the 13th Amendment. And let’s teach ourselves and our great audience
about the details. I’m going to read from the Joint Statement
of the Interactive Constitution of the National Constitution Center. This is Jamal Green and
Jennifer Mason [Indiscernible] nominated by the Federalist Society and the American Constitution
Society, the leading conservative and liberal lawyers groups came up with this joint statement.
So they agree on every word I’m about to read. And they say the most immediate impact of
the 13th Amendment was to end slavery as practiced in the southern United States, however, the
amendment also bars involuntary servitude which covers a broader range of labor arrangements
where person is forced to work by the use or threatened use of coercion, for example
the 13th Amendment peonage. I’m in law professor mode and calling on people. You can dodge
the question. Judge, tell us Sherrilyn says the enforcement
clause bans slavery and peonage and then was interpreted to ban some private discrimination
even though in the civil rights cases Supreme Court said it didn’t. Tell us what in addition
to slavery the 13th Amendment banned.>>Judge Bernice Donald: The courts had to
look at what does slavery mean. And once you abolish that what are the badges that appertain
there, too? I think it’s really important to look at things like your public accommodations,
your restaurants that effect interstate commerce. Many of you probably don’t know this. I’m
going to tell a quick story. I grew up in the south, even though the Brown case I know
we’re dealing with 14th now. And Judge Wynn wants to deal with the 13th.
>>Jeffrey Rosen: He’s going to be tough, too.
>>Judge Bernice Donald: I know. I was unborn when the first of the Brown cases was filed.
I was 3 years old — don’t do the math, please — when the court decided the case and 4 years
old when they did the [Inaudible]. Yet, when I began school in 1956, I started school in
a tworoom, cinderblock school. It was supposed to be separate but equal. With no indoor plumbing,
no running water. All of the books that I studied from came to the black school from
the white school up the street. The supreme law of the land had decreed that separate
but equal is inherently unequal. And, of course, I knew that as part of my little experience.
It was not until 1959 that the state of Mississippi then constructed a compliant school, a school
for the black kids with running water, not until 1966 after some of these civil rights
statutes that Mississippi finally, under compulsion from the federal government, said, ok, we
will desegregate but we can’t do it all at once.
So it’s important that the courts give force and effect and interpret those laws broadly
to ensure the fundamental rights that the laws were designed to effectuate. And that
is equality in all sense. There are people you talk to now who lived
through the time where they could not go in a restaurant and eat even though they had
to pay. When I graduated in high school, there were still schools and other institutions
not schools but establishments that had white only signs. The doctor there totally segregated.
A black person could go to the white doctors in our community 7:00in the morning, would
be the first one there but you could not get waited on until every white person, no matter
what time they came, had been served. There were an awful lot of babies born in the waiting
room because there was no service for the African Americans until all whites had been
served. Those kinds of things, you can’t have abolition and say it’s effectuated when you
still have practices like that even though it’s not being done under color the law, color
of state law. But it’s still affecting people in that fundamental way which tells you that
you are less than an equal when you’re having to endure that.
>>Sherrilyn Ifill: Talking about equality, the word that animates the 13th Amendment
is what does it mean to be free. And there was some controversy about what is caught
up in the bundle of being free. Right? So one is that you are no longer a slave but
what does it mean to be a free person. And it was very clear that there was some difference
of opinion about what were the bundle of things associated with freedom.
So part of the Civil Rights Act of 1866 was trying to explain what freedom meant in the
context of the 13th Amendment and to really ensure that newly freed slaves had the ability
to live and exist as free people. I was reading some time ago some of the legislative
history. And there was one legislator from Illinois who talked about all of the things
that he thought was part of the bundle of being free; that he thought it was the right
to contract; that it was the right for African Americans to travel to and fro and to be free
from molestation, to be able to work and receive wages and so forth. And he believed that that’s
that the enforcement clause of the 13th Amendment which gave Congress the right to ensure that
there was whatever legislation was necessary to effectuate the text of the 13th Amendment,
that that was designed to make sure that Congress could enact whatever statute they need to,
to make sure newly freed slaves could do all of those things associated with the bundle
of freedom. Later we came to and continue to have the same controversy about what the
word equality means or due process means. But freedom also was controversial.
>>Jeffrey Rosen: We have to wrap up in a second. Jeremy, why don’t you begin to tell
us what are the range of debates about what freedom means under the enforcement clause
today; kind of to justify the Matthew Shepard hate crimes law in 2009 and the Supreme Court
said in the `60s that it banned discrimination in the sale of private property. So what kind
of things are people arguing Congress can ban today?
>>Judge Jeremy Fogel: We’re still arguing, I think, about what it means to be free. We’re
still having that. The history is, the other part of it, no slavery or involuntary servitude
except for conviction well, the involuntary servitude because of conviction of a crime,
there’s a whole story there. We could have a seminar about that. And we don’t need to
talk about the debate about incarceration today. We could talk about what happened after
the Civil War. And a lot of the states that had been in the Confederacy passed antivagrancy
laws, people got convicted and then were sentenced to work on the plantation. So this is part
of our history and it’s a part of our history that’s not told very often.
What Bernice said about the badges of slavery the thing that I learned, from really getting
into this, was we passed these amendments and it was essential that we did and it was
a great thing that we did but the country from a social standpoint wasn’t nearly ready
for them. They weren’t really ready to embrace an idea of complete equality, complete equality
under the law, complete equality in social life, complete equality in voting, complete
equality in the right to freedom. And I think we’re still fighting those battles. I think
we’re trying to figure out so what does this mean.
>>One of my theories is actually it was the courts that were not quite ready to do their
role in the project.>>Some of both. Yeah.
>>Sherrilyn Ifill: The average people are never ready for monumental change. But when
you have a Constitutional amendment which essentially says this is who we are and this
is what we stand for, whether it’s, you know, ending slavery or prohibition, the people
follow, right so but the role of the courts did not immerge until that Third Founding.
It didn’t emerge not because it couldn’t have happened, because the courts advocated that
responsibility. It did in the civil rights cases. They advocated the role that they could
have played to give the true meaning and power to the 13th Amendment and to the 14th.
>>Judge James Wynn: What the courts did was restrict the 13th Amendment. It was intentional.
Don’t think they weren’t fulfilling their role in the process of it. And when you think
about that, there were states, North Carolina in particular — the reason they decided to
ratify December4, just two days before, is because they had the notion that if we ratify
this 13th Amendment, then the federal government is going to stay out of our racial matters.
So the whole concept of what you glean from this magnanimous effort in terms of we’re
going free citizenship certainly wasn’t anything they thought about in that nature. And that
whole line of cases, post Reconstruction, that leads up to the the Supreme Court was
doing its job, Marbury v. Madison, interpreting that Constitutional amendment. Fortunately
there’s been a reversal in terms of thought. We have now human traffic being. Clearly now
within it and other forms of involuntary servitude that the court has moved to say there is something
more to the 13th Amendment other than just the freedom of African Americans in that instance.
But then they were doing what they wanted to do. That’s the way they interpreted it.
>>Jeffrey Rosen: A good panel like a good dinner party is one you don’t want to end.
This is spectacular. Judge Donald, I want to ask were the courts
following public opinion subverting the amendments when after the compromise of 1876 and then
by the time of Brown, 54% of the country favors ending segregation, are they following or
leading?>>Judge Bernice Donald: What I was going
to tell you, so many times the court is really going to follow sort of the will of the people.
I think in case they were pretty much following that will, the will of the public, we don’t
want this, if you look back to those cases, even though the courts were some people say
taking leadership, but leadership really sort of mirrors the will of the people.
In the Third Founding, courts stepped up. Justice Scalia would say that they actually
usurped the role of the legislature there. But courts actually look the leadership role.
There was some giants who looked at the law and had fidelity to the law and paved the
way to move forward. But there were times when the courts were part of the problem.
>>Sherrilyn Ifill: 1911, where the Supreme Court says yes, Alabama is violating the law
by not registering blacks to vote; there’s no point issuing a ruling that says that because
they’re not going to follow us anyway. That’s>>Judge Bernice Donald: It is. And following
the will of the people.>>Jeffrey Rosen: Beautiful.
>>Judge James Wynn: One last one. I don’t want us to leave without connecting Black
Lives Matter in its present form with Black Lives Matter with the 13th Amendment. Do you
understand that if the lives of black slaves did not matter, then those that descended
from them could not matter. You’ve got to stop start with the foundational belief that
lives matter. And if you can begin what we’re doing now is a celebration of the abolition
of slavery because black lives mattered, you then can import the meaning into the modern
setting. But to start from the beginning saying all of a sudden it matters, all lives matter.
And you got to have that kind of concept be implanted in the minds of the people rather
than all of a sudden now it matters and now we have a movement.
>>Jeffrey Rosen: Beautifully said. The only way I can bring myself to stop on
time is to make sure we’re going to reconvene over the next five years to keep this Second
Founding discussion going. Ladies and gentlemen, please join me in thanking
our incredible panelists. Beautiful. Very nice.
>>[Applause]>>Jeffrey Rosen: You see the value of bringing
judges together along with great litigators to talk about how they are human beings as
well. They are experiencing the same issues that the country is debating in their courtrooms
and the relationship between the law and public opinion and law and personal experience is
one that we’re really going to examine over the next three years.
Welcome to our wonderful next group. Our final panelist is being mic’ d. Of course we will
wait. The show couldn’t begin. So glad you’re here. Ladies and gentlemen,
you have before you a group of superb historians and scholars.
It’s like sitting in the back room in class. Yes. Come together. It’s not like church.
You were told to sit there but it’s better to be close.
Let me introduce this amazing group and then jump right in. Thavolia Glymph, An Associate
Professor at Duke University, works in the AfricanAmerican Studies Department, author
of “House of Bondage: Transformation of the Plantation Household. I’m going to ask her
about that great book in a second. Richard Brookhiser is a journalist, biographer, historian,
Senior Editor of National Review, known for biographies on America’s founders, including
the just published, why I’m happy to wave it up here, you can get it afterwards, as
you should, because it’s great, “Founders’ Son: A Life of Lincoln.” And Kate is a professor
at Northwestern University. She studies the history of the United States. She is the author
of I’m going to wave this, too. Amazon didn’t send it in enough — I’m waving it in spirit.
Kate’s book is an example for all the land, emancipation and the struggle over equality
in Washington, D.C. And she is leading a really exciting project on behalf of the National
Park Service to identify a permanent legacy to the Constitutional achievements of Reconstruction.
We’ll ask her about that. Please join me in welcoming our great panelists.
>>[Applause]>>Jeffrey Rosen: Professor, tell us about
this great project what are you trying to do?
>>Kate Masur: The National Park Service project? The National Park Service, as probably everybody
here knows, is an incredibly important force for interpretation of history in the United
States. It not only, obviously, super intends the great national parks that have to do with
nature like the Grand Canyon, but also almost all of the Civil War battlefields are National
Park Service sites, for example, and a host of other kinds of historic sites. Actually,
one of the kind of hallmarks of the park service in terms of history has been Civil War battlefields
and the interpretation of the American Civil War. That fact notwithstanding, the park service
has never, until now, had a site dedicated to the period of Reconstruction nor has it
been interpretive framework for the study of Reconstruction for reasons that we could
talk about, for sure. And so in the last approximately two years
I and some other historians in universities, including [Inaudible], have partnered with
people in the park service to begin to come up with a set of ways of beginning to grapple
with the history of Reconstruction on behalf of the park service. Those have ranged from
preliminary meetings in Washington to the creation of a handbook on Reconstruction which
is an illustrated collection of essays, which will be published any minute by wellknown
historians that trace to the national historic theme study which my partner in this and I
are coauthoring, again with the help of a lot of park service staff, compiling information
about existing sites all over the former Confederacy, which is where we’re starting at least for
now, existing sites related to the history of Reconstruction. Then we’ll make recommendations
about sites of particular significance. So it’s an ongoing process. It’s been terrifically
exciting.>>Jeffrey Rosen: Wonderful. Thank you for
sharing it and for doing it. It is a tremendously exciting. And we’re happy to be part of it
with these kinds of conversations. Richard Brookhiser, this book’s been getting
a lot of great reviews. You make a provocative claim that Lincoln, far from simply rejecting
the founders, Madison, Washington Jefferson, as slave owners, embraced them and made them
part of his new birth of freedom. Tell us more about that provocative interpretation.
>>Richard Brookhiser: Well, Lincoln is a very careful writer and speaker. If he meant
to say birth of new freedom, he would have done that. But he said a new birth of freedom.
We talked in the first panel about the importance of the law in taking the lead and shaping
people’s consciousness. Certainly it’s vital. But we wouldn’t have had the 13th Amendment
if 750,000 people hadn’t been killed. The Civil War was the worst experience this country
has ever had. And we wouldn’t have stood it, wouldn’t have gone through that if enough
people hadn’t felt that what they were doing was somehow related to what America was, what
it ought to be but what it ought to be because of what it already was; that we were repairing
a wound in our structure but something that shouldn’t have been there.
Not everybody thought that, obviously. The Confederates had their own different view
than a lot of people, a lot of people in the north didn’t share that. But enough Americans,
Lincoln being the spokesman, the leader of that group, felt that. And that’s why they
were willing to go through that experience. And one of the crowns of it is the 13th Amendment
and then later the 14th and 15th.>>Jeffrey Rosen: Spectacular. Let me ask
one followup question because it’s the natural one. I know the group will want to discuss.
The very positive “New York Times” review said Brookhiser’s Lincoln absolves the revolutionary
generation of complicit with slavery, founders accepted slavery by necessity and connecting
the founders to Lincoln, this is a portrait of the founding fathers not as masters which
so many of them were, but as captives of slavery. What’s your response?
>>Richard Brookhiser: Well, founding fathers, they’re like our actual fathers. You know?
They’re a mixed bag just like everyone’s actual father is a mixed bag. There are bad qualities
and there are good qualities. You have to understand the bad ones but you also look
to the good ones and try to cling to those. And that’s what Lincoln is doing.
Lincoln has some very negative thoughts about Thomas Jefferson, for instance. But he didn’t
utter those in public. The Jefferson that he wanted to talk about was the young man
who wrote the Declaration of Independence. The older Jefferson who backslides, who goes
all over the lot with his opinions about what we shouldn’t do with racial matters, Lincoln
suppresses him but he focuses on something that’s very real, which is the man who wrote
the Declaration of Independence and never abandoned that belief.
For all of Jefferson’s backsliding, he never felt that all men were not created equal.
To his death he would have believed that.>>Jeffrey Rosen: And Lincoln famously said
in front of the Independence Hall, 1861, I would rather be assassinated on this spot
than abandon the principles of the Declaration of Independence.
>>Richard Brookhiser: Yeah, waited four years to do that.
>>Jeffrey Rosen: Astonishing to pass Independence Hall and think of him saying that.
Professor, I want you to talk about your book “Out of the House of Bondage.” You talk about
the way that black woman took center stage along black men as claimants to power and
privilege but to white Americans freedom was the most unearned in their interpretation
of it the most misguided. Tell us more this fascinating and important thesis.
>>Thavolia Glymph: I guess the best way to talk about the book, which I don’t want to
say much about, it’s quite both projects that I’m working on, something different now. The
main point of the book and my current work is that we can’t talk about the 13th Amendment
or the Emancipation Proclamation without talking about the people who were in effect the drivers
of those amendments and the proclamation. So what is often missing in our conversation
is the slaves themselves. So we sit here and we talk about Lincoln and
we talk with about the armies and armies of black people knew where they could go, it
was problematic. We talk about Lincoln’s struggle get to the point where he could take on the
freed people, the slaves’ agenda. So this agenda is their agenda. It’s not the
union agenda. It’s not the Confederate agenda. It’s the slaves’ agenda. So they push it.
So suddenly Lincoln says, ok. The preliminary Emancipation Proclamation he says to black
people, in effect, I see you, you’re coming, I can’t stop you, so now I’m going to encourage
you to come. And does he that again with the Emancipation Proclamation. They keep coming
by the hundreds of thousands. So by 1865, hundreds of thousands of people who were enslaved
who can’t be remade into slaves who are now free people by virtue of the first Confiscation
Act, the second Confiscation Act, the articles of the War of 1862, the Emancipation Proclamation,
the Congressional Measure of March 1865 that frees the women, wives, and children of black
soldiers. So I think we have to keep a clear understanding of this process, this back and
forth that gets us to the passage of the 13th Amendment. And also, very importantly, that
it’s not that the House and Senate said, oh, ok, we’re going to pass these amendments but
that it’s a very long and drawnout process. The House takes a long time to pass it. Senate
takes a while to pass it. And finally it goes to the states for ratification.
And it’s only after Lincoln, again, on the anniversary a year before the amendment is
passed, December 6, 1864, when he makes his message to Congress, he says, please, pass
this bill. You are the same guys who didn’t pass it before but I’m begging you to please
pass it now. And he only need a few votes. So this is not a period when people are just
eagerly sort of applauding the work of free people or slaves to get their freedom. And
I think that’s really important. And we’re here in Washington, D.C. And Kate could probably
say more about this. She wrote a book about Washington, D.C. So some people said, well,
if Congress while we’re debating this issue, you know, where can we emancipate free people
and where can we
in 65 they say, well, thinking about more than freedom, citizenship and the vote, well,
let’s test DC and what happens. The vast majority of white men who can vote in DC say, of course
not. I think the vote was something like 35 to maybe 14,000 people said no and 35 who
said ok. I just want to stress how important it is
to talk about this entire matter as a process that’s very difficult and also to put black
people on the page here sort of alongside Lincoln and sort of pushing Lincoln.
>>Jeffrey Rosen: That’s a great way of framing it. Thank you in the spirit of Judge Wynn’s
homework assignment to focus on 13th Amendment. I want to ask more about that process in a
moment but since you mentioned the book about DC and the book does, indeed, use DC as a
sort of laboratory of democracy for emancipation, talking about the status of schools and voting
and so forth, give us a sense of the highlights and how was emancipation sort of a dress rehearsal,
in DC, to the 13th Amendment.>>Kate Masur: Part of what’s interesting
is the sort of mirror image of the states and part of why Washington, D.C. was so special
during the Civil War and Reconstruction is because it wasn’t a state. And for all of
the reasons I thought it was terrific on the last panel, people talking about the importance
of the enforcement clause because the whole problem this is something I try to teach about
with my students. The whole problem the kind of constitutional problem with slavery was
that states were allowed to have slavery if they wanted and not have slavery if they didn’t.
And the sort of enormity of the innovation of the 13th Amendment was the ability of the
federal government and the people of the United States to finally say, no, there’s there are
a lot of things states can still do but there’s one thing you can’t do if you’re a state and
it’s have slavery. And that is not only a magisterial change in terms of abolishing
slavery but also it’s an enormous change in terms of the relationship between the federal
government and the states up until that point. So DC’s history is different because Congress
had more or less unchallenged power in the District of Columbia as people who live here
now are well aware. So Congress didn’t have to worry some democrats argue that Congress
wasn’t allowed to abolish slavery in the District of Columbia either but that was a fringe position.
So they didn’t have to worry about federalism. So they abolished slavery. Actually, a lot
of people think Lincoln did it but actually Congress passed the Emancipation Proclamation
in April 1862 which Lincoln then signed. And then for the next several measures going forward
whether it was voting rights for African American men preeminently also the desegregation of
street cars in Washington happened by congressional law in 1865. The spring of 1865 before the
13th Amendment passed as a result of African American activism and pressure on Congress.
Not leased by some African American who has worked in the Capitol building who used their
positions as workers to get access to, have conversations with, members of Congress, members
of the Senate, and talk to them. And people like Charles Sumner put those measures out
on the floor of the Senate. And I want to add one thing because it often
gets forgotten in these conversations. At this moment of enormous constitutional change,
women’s rights activists also said at that particular moment, this is a moment of huge
change, remaking the kind of fundamental premise of the United States. And we think there should
be universal suffrage by which they meant equal suffrage for men and women alike.
So that, too, happened in Washington, DC. Not that women weren’t franchised but there
was a vibrant, at times biracial, movement for women suffrage in wash where they were
using the same argument: look, you can do what you want in Washington; why don’t you
experiment in women’s voting rights as well? So it was a laboratory for democracy but at
the same time it was also a laboratory for by the early 1870s, a coalition of basically
businessmen of various stripes, different political persuasions, managed to come together
and gotten the ear of a changing Congress, a Congress that was no longer quite as committed
to these sorts of reforms and persuade Congress to remove all voting rights from the District
of Columbia. So instead of allowing there to be, which
there had been for some six or seven years of black and men voting together, electorate,
now Congress took away the right of all residents of the District of Columbia to vote on their
own government. And that was the case until the late 1960s. So actually that downward
trajectory of democracy in Washington during Reconstruction had a huge, lasting impact
in terms of willful government until the Civil Rights movement.
>>Jeffrey Rosen: Richard Brookhiser, Kate described this dialogue between the president
and congress. What was Lincoln’s expectation of the 13th Amendment? What sort of 13th Amendment
did he want? What did he believe it would achieve? And did he also think there would
be subsequent amendments necessary to achieve full equality?
>>Richard Brookhiser: Well, what would Lincoln’s Reconstruction policy have been? Historians
go back and forth over it. One of the few public hints he gave, after [Indiscernible],
he gave a speech from the White House to a crowd that gathered on the lawn to celebrate
the surrender of the main Confederate Army. And this was a carefully prepared speech.
He had already had a plan for the reconstruction of Louisiana. This was a state much of which
had been occupied by the Union fairly early in the Civil War. There were loyalists, unionists,
not opposed to slavery necessarily but certainly opposed to secession.
And some of these people had gotten together, enough of them to elect a government. They
wanted Louisiana to participate in Congress as it before the war. And Lincoln had a plan
to allow that to happen so long as they supported the Emancipation Proclamation and the 13th
Amendment. There was no provision for blacks to vote in Louisiana. But Lincoln, he wrote
a private letter to the governor, the wouldbe governor of Louisiana, suggesting that veterans
and the very intelligent be allowed to vote. And then in the speech he says this is first
time he has mentioned voting rights for freedmen. One of the people in the crowd was John Wilkes
Booth. He said that means it’s the last speech he’ll ever give. And it was. Booth killed
him four days later. But that was Lincoln is very cunning. Lincoln is a politician.
He’s a great man, a great writer. But he’s also a politician. And he’s a very good one.
He’s a very cunning one. He never says anything that he doesn’t want to say. He shows his
cards very slowly. But in that speech he was showing another card.
His genius during the war was he kept himself at the center of the Republican Party, which
was the majority party in Congress. And it had radicals who were out ahead of him. It
had very conservative people who were dragging along behind him. But he kept most of them
all in the same tent and of course. He kept most of them in the same tent and kept them
moving along. I think that this is an example of where he wanted them all next to go.
>>Jeffrey Rosen: Professor Glymph tell us more about the politics of the 13th Amendment.
You said it was hard to get through Congress which seemed to change its mind a bunch of
times. I guess we’ve all seen the movie. How accurate was it? And how did Lincoln get it
through Congress?>>Professor Glymph: Well, the movie essentially
takes us up to the passage in the House, which is the moment that most Americans know about
when Congress passed the amendment in January of `65.
If you’re asking about the entire process, we’d have to go back again. And I sound like
a broken record. My students tell me. But we have to go back again to the enslaved people
who are insisting on their freedom. And then we have to go to the abolitionists both black
and white who say this is really important and who signed petitions that they carry to
Congress knowing that the 13th Amendment will have no constitutional foundation and that
anything can happen. So these petitions go to Congress. The proposal
is finally made while we’re sort of on the 13th Amendment again to go back, many of you
know, of course, that the original 13th Amendment was an amendment that went through Congress
proposing that slavery be made constitutional. This is at a moment when there is great concern
that this war that’s about to happen, it’s not worth losing 750,000 large over black
people. So Congress says, ok, we’ll have an amendment that will ensure southerners that
they don’t have anything to worry about. So that’s the first 13th Amendment. And so
we get to the second 13th Amendment which does finally get proposed and does finally
get through the senate and does finally get through the House. And then it goes through
this long process of ratification. It’s not surprising when was it, Mississippi finally
ratified, Judge? 113 years after the amendment was passed. But, you know
>>Jeffrey Rosen: Better late than never.>>Professor Glymph: Despite Mississippi’s
a resistance, it’s still the law. It’s hard for any of us to summarize this long, drawnout
process where people are making deals behind, you know in the back rooms and trying to figure
out what was possible, which states would pass. And the northerners, of course, had
to realize that, ok, if we’re going to go with freedom for all black people and the
next big question is going to be, as the panelists indicated before, what does freedom encompass.
What is this bundle of rights? Does it encompass most importantly the right to vote?
The northerners had to say, well, ok, we’re not totally there yet because black people
can’t vote in every northern state. Americans had to deal with the fact that up to this
point the only real document that gave one or acknowledged one citizenship was, what,
the passport. And black people up through 1863 could barely get a passport. You got
something called a protection paper. If you wanted to travel abroad. And there were exceptions.
A few black people here and there got a passport. And finally Lincoln’s administration is the
one where the Secretary of State says, ok, black people can have passports.
So there are a number of issues, questions, and problems that arise around the 13th that
lead us to the 14th and to the 15th. And the passport issue I’m teaching a course this
semester in the Duke Law School. One of my students is writing this wonderful paper on
these passports and on the tremendous energy that went into fighting this battle for citizenship
long before the Civil War in the north. And it was covered almost every day by the black
newspapers, you know who say, finally, if you can’t get a passport, it means you’re
not a citizen. We pay so much attention to [Indiscernible]
that we forget about these other cases including the wonderful historian Martha Jones is writing
about, where black people are fighting for citizenship long before the Civil Wars. It’s
not just something that Congress and Lincoln decide, ok, to give us in 1863.
>>Jeffrey Rosen: You remind us so importantly the story of African Americans demanding the
end of slavery and also the question of what freedom encompassed is central.
Professor Masur, you wrote in your contribution to the Atlantic magazine Second Founding Symposium
which the Constitutional Accountability Center and the NCC were delighted to cohost. You
said the 13th Amendment was the beginning not the end of the effort to make a new nation.
You quoted Frederick Douglass, slavery is not abolished until the black man has the
ballot. While the legislatures of the south retain the light slavery still lives there.
What was Douglass and other African American leaders response to the 13th Amendment? They
think it didn’t go far enough? What did they think was necessary?
>>Kate Masur: I think that was from the spring of 1865, around the time that the Senate passed
the 13th Amendment sorry. After the amendment passed. There’s a significant convention of
African American men in Syracuse, New York, in 1864, the summer of 1864. There was a long
history that we don’t want to sort of write out of this of African Americans particularly
in the north where they had more liberty organizing, mobilizing, for both their own rights and
their own wellbeing and dignity in the places where slavery had already been abolished and
also fighting to get slavery abolished in the South.
And out of that came from the 1830s through the 1860 and onward an African American convention
movement. And one of the most significant conventions they had and the most fascinating
was in 1864 when people met in Syracuse. For the first time a lot of southerners were able
to attend because the war had progressed enough, enough people had been able to escape from
slavery that people were able to travel from the slaveholding states into New York State
to go to this convention. They created a document that included a declaration of their views
on what should happen next. Again, this is 1864. There were a lot of things
they wanted to see happen including racially equal rights, dignity, decent labor conditions,
and also the right to vote. And really the right to vote and protection for the right
to vote was on the agenda of African American in the north before the Civil War in places
like Pennsylvania, where they had been able to vote until the 1830s when the vote was
taken away, in places like Illinois where they had never been able to vote.
So it was on the agenda kind of nationally. But one of the most significant you could
sort of think about it as it’s a different kind of significance or a different level
of significance when you think about the emancipation of some four million people in the south really
being able to dramatically reshape the balance of power in the United States if they were
enfranchised and on the local level to control or have a say in their own wellbeing in the
elected officials, on the very most local levels, sheriffs, tax assessors, just the
people who you would interact with most on a daily level. So the vote became this incredibly
important thing. And well before it wasn’t like people passed
the 13th Amendment and then turned their attention to the vote. You find from the Syracuse convention
and onward, both Northern African Americans, freedmen, freed slaves in the south, considering
in state conventions to say, look, this we cannot be free if we can’t vote. So it emerged
immediately on to the agenda. It had already been on the agenda but you can see it even
before the war ended.>>Professor Glymph: And the Douglass quote,
when he said freedom will not have freedom until the black man has the vote, the context
for that is also suggestions that the American antislavery society should be closed down
and that the fight was done. And Douglass said, no the fight is not done. So that’s
the main context in which he kind of forces the abolitionists to keep this organization
going because it’s not over yet.>>Professor masur: One of the things I did
want to say is that this is the way this kind of trajectory and the way that we think of
the Civil War as having ended in the spring of 1865 but we can’t understand the Civil
War if we don’t understand Reconstruction. We cannot end the story in April 1865 with
the surrender and sort of go home content that we understood the implications of the
Civil War. It’s one big story from the beginning of the war until decades, almost to the end
of the 19th Century you could argue. I feel like it’s one of the things that can
come out of this is a notion that when we commemorate the history of this period this
completely fundamental period in American life, we can’t tie up a nice little bow at
the end of what we consider the end of the Civil War and think we understand it.
>>Jeffrey Rosen: Great. Richard we have a few minutes of questions
for the audience. Richard?
>>Richard Brookhiser: And the Reconstruction Amendments were gelded by terrorism. That’s
what put the kibosh on it, which killed the Republican Party in the south, literally killed
a lot of its members, white and black, terrorized the rest. The insurgents won. That was the
story of Reconstruction.>>Jeffrey Rosen: Questions from the audience.
We have mics. If you could walk up to the mic. I think there’s one over there and one
over here. And I’m a law professor so I can call on people.
We said everything? Here we go. Great.
>>Hi. I’m not a law professor.>>Jeffrey Rosen: That’s good.
>>During the discussion, Professor Glymph talked about the importance of not just focusing
on the 13th Amendment but what happened before and since and everything. So my question is,
during the Civil War you kind of mentioned, Professor Glymph a little bit, at what point
did the political process sort of tilt away from trying to entrench slavery with the first
13th Amendment to the actual 13th Amendment that abolished it? Was there a certain point
where politicians said, ok, let’s put that one away; we’re not going to be able to entrench
it; let’s go the other way?>>Jeffrey Rosen: Good question. Professor?
>>Professor Glymph: I’d say there’s no defining moment. But I would say also that by the time
we move into 1863 in terms of the war itself and the issuance of the Emancipation Proclamation
of 1863 there’s been a really significant shift. And that shift should go back to my
perennial point, that shift is marked in two ways. One, by the ability of the Union Armies
to do their job. Ok? So who is going to win this war on the ground, on the battle front?
And once the Mississippi River is clear, and that’s clear by April of 1863, that allows
the western Armies to come east to help out those on the Eastern front.
So it’s that spring of 1863 that to me is really, really important. Because what the
Emancipation Proclamation also does is that it says that the Union Armies can enlist black
men. So the Western Armies then benefit immensely from the effort to enlist black men from Mississippi
and Alabama and Louisiana and so forth. So that’s a critical turning point.
Now, what do you do at that moment? Once you’ve enlisted black men, you can’t go back and
say, well, you’re not going to be free. And then you have their wives and children who
are saying, well, our husbands are in your camps so we deserve to be given refuge, to
be given protection. So they’re moving to I think the turning point is really the spring
and summer of 1863. I’m sure if you talk to any military historian, they’d give you 10
other turning points.>>[Laughter]
>>Richard Brookhiser: But black men not only affect the military equation by their numbers
in the Union forces but then they also help change people’s opinion. Because this is the
most important test of citizenship or one of them. You fight for your country. And there
are thousands and thousands of black men fighting alongside white soldiers for the Union.
>>Professor Glymph: Proving they can take a bullet, which is not something we want to
say we’re proud to do. Right? But that’s the only way
>>[Inaudible]>>Jeffrey Rosen: Wonderful exchange.
Yes, ma’am?>>Hello. My name is Laverne. I’m not an attorney
or a lawyer. I’m a scientist, really.>>Jeffrey Rosen: That’s great.
>>I really am thankful that this sort of event is taking place. Generally I had a great
sigh of relief when I heard the judge talk about his experience growing up and in the
history lessons and his history courses in how so much of what we are talking about today
just wasn’t talked about earlier. So in saying all of that and listening to everyone speak,
I hear terms of African American but I don’t hear the term colored. So when you say or
the term negro. So when you use the word African American, I think about how we are today in
this era of freedom, I guess you could call it. But when you talk about the negro, I would
like to hear that word negro used as a term that could maybe validate the level of freedom
that the person of African descent had. So when you use that word African American to
talk about the history and the people who were enslaved in 1865, it’s kind of conflicting
or confusing or maybe not congruent. Just what do you think about that?
>>Jeffrey Rosen: It’s an interesting question. Who would like to take that?
>>Richard Brookhiser: Well, it’s not historical. The people at the time are mostly, as you
say, using negro.>>So should we use that word negro when we
talk>>Professor Glymph: You have to remember
black newspapers are called the afro blah, blah, blah, or the African AfroAmerican, and
African American are not 20th Century terms solely. People you almost never see a black
newspaper in the north in 1850 called a negro whatever. It’s always the afro something.
So there was always to me, a really important effort on the part of people of African descent
in this country to remember, right, to keep connected to slavery which was through remembering
the African part. So I think it’s easy because our history is so washed away to not know
or for us to forget that these were terms that black people did, indeed, use in the
19th and 18th Century.>>Richard Brookhiser: But one of the fault
solutions was colonization which was even some people, a lot of people who opposed slavery
thought, well, we’ll free the slaves but send them to Liberia. We’ll just get rid of them.
And Lincoln seemed to have believed this as late as the early Civil War. But he learns
the first delegation of black men who are admitted to the White House as people coming
to talk to the president, as peers, in a dialogue, are a group of black men from Washington,
D.C. and Lincoln is pitching a colonization plan to them. He gets no takers. He’s like
an auctioneer saying if I can get 100, get 50, get 25. They don’t want to go. They’re
Americans. Why should we be sent someplace? So Lincoln learns from that.
>>Professor Glymph: He does but Congress doesn’t. Doesn’t we do send people off. It’s
a horrible experience. We have to send a warship to bring them back.
>>Richard Brookhiser: That’s right. So Lincoln maybe learned ahead of some other people but
a lot of people were learning from this.>>Thank you for your comment. That was just
a developing thought that came across as I was listening to the panelists. It’s a changing
of those terms.>>Jeffrey Rosen: It’s a great question.
My only job as moderator is to end on time. We have one minute left. You have the last
word.>>Kate Masur: Just a thought was that you
were pointing to an important question which is hard to grapple with because we are writing
in the present and talking in the present about the terms people of African descent
in the United States have talked a lot about what they want to be called. Right? And there
have been a variety of different terms. You see in the period that we’re talking about,
colored, you see people discussing it as it’s very, very important as it is today for people
to think about it this idea of naming. But when we’re talking about it, there’s another
conversation about whether to call people slaves who were enslaved. Is it ok to say
they were a slave or should you call them an enslaved person because it dignifies the
person and doesn’t reduce them to enslavement? I think the question is a sensitive one because
it’s about this kind of problem of talking about the past in the context of this complicated
history of terminology.>>[Question Inaudible]
>>Jeffrey Rosen: This whole conversation has been a great contribution to precisely
that sort of civil discourse. Ladies and gentlemen, this is an incredibly
auspicious commemoration of our anniversary. Join us. Amtrak is a short ride. Wait one
sec. I assure you the train ride to Philly is pleasant. And on Wednesday evening we’re
going to continue this great series with Richard Brookhiser who will be moderating a conversation
with Eric Foner, the Reconstruction historian, at the National Constitution Center cosponsored
by the Constitutional Accountability Center and the NCC. Please join us for the next five
years for the Second Founding initiatives and thanks our great panelists.
>>[Applause] 1

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