To kick off the D.C. Historical Studies conference, historian Eric Foner spoke to a very full auditorium at the National Archives last night on "Reconstruction and the Fragility of Democracy." Foner selected a few highlights to summarize more than a decade of history (roughly 1865 to 1877, with its promise extinguished by the end of the 19th century), but focused on something that has endured--the 13th, 14th, and 15th amendments. (By the way, the 12th was ratified in 1804, so there had been quite a long time since the Constitution was amended.)
The 13th amendment abolished slavery--that's the one featured in the film Lincoln. He made the point that unlike the film depiction, the President did not initiate the amendment.
Things got more interesting with the 14th and 15th amendments. This is what the first section (of five in total) of the 14th says:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And here is the 15th in full:
Section 1.The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude
Section 2The Congress shall have the power to enforce this article by appropriate legislation.
As part of the legacy of the Reconstruction, according to Foner:
- These amendments empowered the federal government to show what it could do--versus the Bill of Rights, which focused on what it could not do (e.g., restrict free speech, etc.)
- The 14th establishes birthright citizenship. You were born in this country, you are a citizen--no matter race, religion, etc. Ironically, this is one example of American "exceptionalism," as most Western countries do not establish this right. And haven't we heard about this lately from at least one presidential candidate?
- "Equal protection" under the 14th was, as he quoted from Charles Sumner, "a sleeping giant." In other words, it lay dormant for decades, until finally the Civil Rights movement could harken back to it to continue the struggle for equality. What's more, it endures. Today's Washington Post notes that an appeal of a decision by a Utah judge to take away a child on the path to adoption by a lesbian couple because they are not heterosexual can draw on the "equal protection clause of the 14th amendment."
- The 15th amendment about voting has followed a curious and not altogether satisfactory route. Note, as he called it, the "negative phasing"--no state can deny the right to vote on the basis of race. Foner said this inadvertently (or not--my opinion) allowed discrimination, from the poll taxes and impossible tests in the South to the current debates about early voting, voter IDs, etc. of today. In other words, because these restrictions are not phrased in terms of race, they do not officially violate the 15th Amendment, which is what has made other voting rights legislation necessary.
Foner explained the ascendence for 70 years of the Dunning school (William Archibald Dunning) to interpret the period. Most of us of a certain age are a product of that theory, when we learned about Reconstruction maybe in half a class period after the Civil War. As one woman in the q-and-a after the lecture put it, she still remembers the picture in her history book of dreadful-looking carpetbaggers and scalawags. As a wordsmith, I would say these two irresistible words cemented the interpretation of Reconstruction for generations of Americans. Hopefully, with work by Foner and others, we have moved beyond that.