Regina de Heer: We're in front of the White House. The midterm elections are coming up and democracy is on the mind. What in your opinion makes a democracy a democracy?

Diane: Freedom to choose one's own leaders in fair elections.

David: Civility, rule of law, respect for judicial system.

Barry: Voting rights so that all people's voices are heard in the elections.

David: Free media, free markets. How am I doing?

Matthew: Everybody has a different definition. I'm just looking for nice.

Regina de Heer: Why for you personally is democracy important to keep alive?

Diane: It allows people to avoid being ruled by tyrants, we have our two salients as an example of that right now, in terms of what's going on in Ukraine and Russia.

Barry: It's what our society is built on. It's the values that we all understand to be true in this country and that we need and want to preserve.

Kai Wright: Welcome to the show, I'm Kai Wright, and this election year is well underway. 12 states hold congressional primaries next month. I hate to get all schoolhouse rock on you about it, but I do still believe that elections are about more than picking sides in a partisan feud. They're an opportunity to debate what kind of society we want to create. Many people have rightly noted that this year's election can be understood as a debate over democracy itself, over whether to accept the results of the previous election.

That's certainly true as far as it goes, but I'd argue it's more precisely described as a referendum on our attempt to create a multiracial and multiethnic democracy. Do we actually want one? If so, what are we prepared to do about it? Historian Eric Foner argues that the United States has essentially been wrestling with those questions since the end of the civil war.

Eric Foner: Slavery was 250 years, more or less, we're only 150 years past the end of slavery. These ideas of power, of racial inequality, of domination, are baked into the culture. That's why when people ask me when did reconstruction end? I say it hasn't ended. No, we're still fighting over these reconstruction issues.

Kai Wright: Reconstruction, he's talking about the years following the civil war in which Americans tried to rebuild and reimagine this country without slavery. It was a time when black achievement exploded in every part of life, not just politics, there were more black people in Congress in those years, just after the war than in the whole next 100 years. I'm a geek for this history.

Back in 2020, I spoke with Eric about it. I'm going to share that conversation again this week as a sort of opening salvo and the discussion we'll be having here over the coming months as we cover the midterm elections. When we first aired this conversation, I also shared the internal debate we were having about it on our team. As I said, I've always drawn a kind of inspiration, if that's the right word for it from the reconstruction era, but one of our producers at the time, a close friend of mine, Veralyn Williams, she didn't exactly share my enthusiasm, and honestly, she still doesn't, but here's how she put it back then.

Veralyn Williams: It was just a moment where you built it up to be like America was actually living up to its ideas of life, liberty, and the pursuit of happiness. I was at the time like I don't remember that history, because what I remember is very early on in my life reading Roll of Thunder, Hear my Cry which is about a family in Mississippi who were sharecroppers.

[video playing]

Speaker: Why don't you look where you're going

Veralyn Williams: Dealing with racism and being terrorized within their daily lives.

[video playing]

Speaker: I'm sorry.

Speaker: That ain't enough, you get down in the road.

Veralyn Williams: The images that I have of black people in this country since slavery, none of it was aligned with what you were describing.

[video playing]

Speaker: My daughter, Lilian Jean tells you to get down off this sidewalk, you get, you hear?

Veralyn Williams: I was skeptical and that's maybe the kindest way I could describe what I was. When you have a clear understanding of racism you see like, "I think I'm being lied to. I think I understand--"

Kai Wright: See this is what I was trying to say when it wasn't utopia. I think the lie that we've been told is that this time didn't exist. The whole Southern project after reconstruction was this effort to erase it from our memories and I feel like it was successful erased from my education. I had this fancy education and it was erased from it. As an adult, I have had to reinsert it, and once I know it, it changes everything about what I understand about what is possible in this country and what is possible for black people.

Veralyn Williams: I think the other thing that I've thought a lot about is, it still wasn't great for black women and so maybe that had a lot to do with my ability to reconcile that things were great, because like great for who?

Kai Wright: That's a really big part of the debate during reconstruction. Who are we talking about when we start talking about freedom? Who's all-encompassed in that? I think what is so interesting about it and that I still argue all these months later since we started this conversation is that there were a set of ideas that were being put on the table at that time about what America could be. It started this debate that we've been in ever since and that it just feels like right now this election, it was clear to me back then, and it's so clear now, this election is about the ideas that got introduced during reconstruction and it's like a referendum on whether or not we want to move forward with those ideas or finally actually abandoned them to the rubbish shit.

Eric Foner: Before we start, do you prefer, I can talk about this stuff at any length. Do you prefer succinct answers or should I ramble on and then figure you'll edit it down the road or what?

Kai Wright: Give us the middle ground.

Eric Foner: All right.

Kai Wright: This is Eric Foner again, he's the author of a book called The Second Founding: How the Civil War and Reconstruction Remade the Constitution. He's really the established expert on this period. Eric is going to tell us the story of reconstruction, it's the story of what could have been and maybe what could still be.

Eric Foner: I'm not talking about utopia on earth, but just imagine the new deal with black people voting in the south where you didn't have these white supremacists who controlled the levers of Congress. FDR, he didn't care that much about civil rights, but he had to deal with them. You want to get things through, you want to get social security through, you got to keep blacks out of it. You want to get fair labor standards through, you got to keep-- The southerners said, "We're for all this stuff, but we're not going to do anything that'll help black people get alternative modes of employment or education or something."

That was baked into the whole new deal welfare system because that was the only way to get those things through Southern segregationists. Now, if they weren't there if you had just ordinary members of Congress voted in by black and white people, you would've had a very, very-- We'd have national healthcare now I'll tell you that much.

Kai Wright: So many things would be different today had the story of reconstruction unfolded some other way, how we vote, how we think about the federal government, just how we share public space. All of this and more, it was determined by three constitutional amendments, the 13th, 14th, and 15th Amendments. Eric, walk me through the story of each one, starting with the 13th, which began a conversation about what freedom actually means in the United States.

Eric Foner: All right, 13th Amendment, Section 1, Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Kai Wright: These seem like quite clear words, but they were not to many at the time. Let's try to parse a little bit what everybody thought they meant.

Eric Foner: Slavery is a total institution, you might say. In other words, it's a system of labor. It's a system of politics. It's a system of race relations. It's a tremendous accumulation of wealth in the hands of slave owners. When you say slavery shall no longer exist, it's abolished, all sorts of people have different ideas about what that means. Yes, African-Americans certainly understood that it meant access to the kinds of rewards for your labor, that you didn't get under slavery, but they also thought it meant many other things. African-Americans had a very broad idea of what they-- We are now citizens they said, even though the word citizen doesn't appear in the 13th Amendment, "We should have the right to vote now. At least men should have the right to vote. That's part of what it is to be a free person."

Then there were many others. Southern whites said, all right, all right. They understood no more slavery. "We cannot buy and sell people anymore that's clear, but that doesn't mean they have any other rights. We're not going to let them vote. We're not going to let them hold any power in the south. They got to go back to work for white people and now they'll be paid some meager salary instead of being slaves."

Slavery was created by state law, not by the federal government, and this amendment abrogates all the state law establishing and protecting slavery, but it leaves a vacuum, then what? That's the question that has to be answered.

Kai Wright: If black people had an expansive answer to that question and Southern whites had a very limited answer, the Northern liberals, led by the Republican Party back then, they split the difference. To them, freedom was about the marketplace.

Eric Foner: That's how Northern Republicans saw it, that we are going to have to give African-Americans the wherewithal, the rights, the ability to do what they thought white people do all the time. That is work hard, accumulate some money, set up a shop, set up a farm, move up the social scale.

Veralyn Williams: Black people were supposed to just be able to do all that straight out of slavery?

Kai Wright: [laughs] Pretty much. Like, "We think you could, we're for your freedom, but bet you on your head."

Veralyn Williams: "You're no longer slaves. Why can't you just get it together?"

Kai Wright: Veralyn Williams, one of our producers is with me as we listen to Eric tell the story of reconstruction. I got to say, one of the super inspiring things to me about this era is that so many black people did in fact walk off of plantations and just get at it. I think what's interesting about this moment in history is it is an interesting moment in the history of white liberalism because Lincoln was the head of that part of the party that was saying, "Y'all can be free. You just need to go back to work and everything. You don't need to do anything else." His Vice President, Andrew Johnson takes over, these two aren't allies, but Johnson is really a Donald Trump kind of figure. He was so reactionary and he pushes the white liberals way past where they ever intended to go.

Veralyn Williams: Meaning getting them to be more progressive?

Kai Wright: In reaction to him. He's so reactionary, so much. He really is a Trump-like figure. He's so racist. That the white liberals are like, "Whoa, hold up."

Eric Foner: Johnson was deeply racist. He was a white southerner who had been put on the ticket with Lincoln, no one thought he'd become president. Anyway, by the time Congress meets in December 1865, Johnson's like, "Reconstruction's over, 13th Amendment is ratified. I have set up Southern state governments and they're functioning, so that's it. We've reunited the union, this is great."

Congress, the Northern Republicans said, "No, wait a minute, wait a minute. First of all, the government that Johnson established have given no rights whatsoever to Blacks. They've passed these very discriminatory laws called the Black Codes, putting Blacks back in a condition, if not slavery, then something somewhat close to it." They say, "No, Congress has got to intervene to protect the basic rights of these former slaves." What are those rights? The Civil Rights Act of 1866.

Kai Wright: The Civil Rights Act of 1866 is a huge turn in US history. It's the first effort to operationalize the 13th Amendment, to codify what it means to be free of slavery. To me, it's really the beginning of the political fight we are still in right now. Everybody was drawn into the congressional debate over this new law. Think about it like the way Obamacare got us all talking in these new detailed ways about our healthcare system. How everybody just suddenly had opinions on the subject.

That was the national conversation about civil rights in 1866. People were reconsidering fundamental questions. Who gets to be called American? What rights come with that designation? Civil Rights Act was the first law to tries to spell it all out.

Eric Foner: The right to own property, the right to go to court, to sue, to be sued, to sign contracts, the right to have the law apply to you the same as to other people, not the right to vote. There was a sharp distinction in people's minds between civil rights, and political rights. You can be a citizen, and not have political rights. After all, women were citizens and they couldn't vote. It doesn't include the right to vote, but it does include a notion of legal equality, particularly in trying to earn the fruits of your own labor. It's the first law in America that tries to really establish legal equality between African-Americans and white people. Before the civil war, there was no such thing as that.

Every single state north and south had laws discriminating against Blacks. Remember in 1857, the Supreme Court had declared in Dred Scott that no black person could be a citizen, citizenship is for whites only. Now, this is reversed. Now, anybody born in this country, black or white, whatever is a citizen of the United States with basic rights that the federal government has an obligation and the power to protect.

Remember the 13th Amendment had that second clause, Congress shall have the power to enforce the end of slavery. This is what they think they're doing. This Civil Rights Act is passed under the 13th Amendment. It's part of the abolition of slavery. It delineates what rights you need to have to be a free person in America.

Kai Wright: Up next, Congress tries to make these ideas about freedom permanent, and in the process rights are probably still the most contested words in our constitution. We'll be right back.

[music]

Kousha: Hey everyone. This is Kousha. I'm a producer. Last week, Kai talked to Jo-Ann Yoo from the Asian American Federation about how we can make our big cities feel more like welcoming communities, to really see and connect with each other, especially in the face of xenophobia. Now, if you haven't checked out that episode, please do. It's called The Dangerous Cycle of Fear. At the end of the conversation, Jo-Ann asked if any of you had ideas to make that kind of community.

We got a few responses, including an email from a listener named Dan, who writes, "Hi, I'm a long-time listener to your show, and it's opened my eyes, and helped me get through the past few years. Jo-Ann's question of how we can see each other made me think about how much going to open mics has helped me see the humanity in strangers. One of the best ways to see the deepness and importance of each individual is to see them present a distillation of who they are through poetry, song, comedy, on stage, and public. We need to listen to each other more, and I think that organizing open mics to do this would be helpful. Thanks."

Thank you, Dan. If you've been to any good open mics lately, let us know. I bet that idea of finding humanity through art, probably resonates with other listeners too. For you listening now, tell us if that's the case. Share any ideas about out how you build community or anything else that's resonated for you from this episode. You can record yourself on your phone, or write a message and email us. The address is anxiety@wnyc.org. You can also tweet us with the #usofanxiety. Thanks so much. Talk to you soon.

[music]

Kai Wright: Welcome back. I'm Kai Wright. This week we're revisiting an episode we aired in 2020, which tells the story of a period in US history that I think you got to know well if you're going to understand the most fundamental debate in American politics today. We're looking at the years following the civil war, when an interracial political coalition reimagined what the United States could be, a true multiracial democracy.

I personally find a lot of inspiration in this era, particularly when I think about the way black people stepped into the moment, but it's complicated. When we first aired this episode, we also shared the conversation we were having about it on our team. Here's one of our producers at the time, Veralyn Williams.

Veralyn Williams: It's hard for me sometimes to be able to just cheer on or even just articulate what's good about this time in history that we're talking about, because it's like, my fundamental response is always just like, look at what we're still dealing with today.

Kai Wright: I guess, first off there-- [crosstalk]

Veralyn Williams: I guess you just want to hold onto it, and you're saying it's important to hold on to it but--

Kai Wright: No, it's important to hold onto it. It's also because I'm trying to think about the way forward. I am not invested in the idea that we need to prove that America is rotten. I got that. I'm invested in the idea of how do we get to Black freedom. Historian Eric Foner is our guide this week. He's the author of The Second Founding: How the Civil War and Reconstruction Remade the Constitution among many other books. He's telling us the story of three constitutional amendments that redefined the United States. We've gone through the 13th Amendment. It got rid of slavery, but it begged the question of what freedom actually means, at least legally. Congress answered that question by writing the 14th Amendment

Eric Foner: 14th Amendment, which was approved by Congress in the middle of 1866. Section 1, 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. Then it goes on to say 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.

You could spend a lot of time parsing that language. Law professors have gotten rich writing articles and going to court and other things trying to figure out, what do these phrases mean? I mean, remember the Civil Rights Act had listed specific rights. This doesn't give you specific rights, it gives you general principles, equal protection, due process, privileges, and immunities, all of these cry out for definition.

Then over the next century and a half, a lot of the work of the Supreme Court has been giving meaning to these phrases. Every single session the Supreme court has cases relating to the 14th Amendment. Some of the most important decisions of the past 50 or 75 years have been 14th Amendment decisions, whether it's brown versus board of ed or one man, one vote or gay marriage or abortion rights, all these rights come out of the 14th Amendment and those phrases of equal protection due process.

Many of them obviously are things that people in 1866 weren't thinking about. The members of Congress weren't thinking about gay marriage, but it's a perfectly logical use of the notion of equal protection of the law to say, "Hey if heterosexual couples get married, it's a denial of the equal protection if you say gay couples can't get married." These principles have a life of their own, and there's also nothing about race in this Section 1, it applies to everybody. It's a national principle, it's main purpose is to protect the form of slaves, but that is not the only purpose.

Kai Wright: Okay. Let's back up and try to parse out the meaning of the words in the 14th Amendment ourselves. Let's start with the very first sentence. Here it is again.

Eric Foner: 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. This is birthright citizenship. The Civil Rights Act already had that, but a law can be repealed by the next Congress. This is putting birthright citizenship into the constitution for the first time.

Kai Wright: Help us understand-- This is an idea that had not existed in human history.

Eric Foner: It's very vague. That is to say, who is a citizen varies enormous from nation to nation and in the United States before the war civil war, it varied from state to state. Each state could determine who was a citizen. There was no national standard. Today, this is a very unique thing. No European country has automatic birthright citizenship now. If you are the child of a Turkish guest worker born in Germany, you are not automatically a citizen. You can become one, you have to go through a whole rigamarole of tests and all this. Some Latin American countries do have birthright citizenship.

We're not the only one, but it is fairly unique in the world today. Of course, it's totally controversial, I mean, President Trump has voiced the idea that he could just abrogate this by executive order. Senator Lindsey Graham has called for congressional hearings on whether to change the 14th Amendment. What they're talking about, of course, are the children of undocumented immigrants, but the language is very clear. It's not about the parents, it's about being born here.

Kai Wright: At the time, that was part of the point, it was to get rid of slavery laws that--

Eric Foner: Absolutely, absolutely. That this is a statement that race will no longer be a determining factor in whether you're a citizen or not, which is actually a pretty remarkable thing two or three years after the end of slavery. Now, one thing I want to emphasize is that the key figures in Congress who passed all this were veterans of the anti-slavery movement. The anti-slavery movement for years before the war had been insisting free black people must be recognized as citizens. Free black conventions before the civil war called themselves conventions of colored citizens. Citizens. They put that right up there, they claimed it. Even though the courts and political system didn't recognize it, but they were fighting for the recognition as citizens.

This doesn't come out of nowhere. It comes out of a long struggle that black and white anti-slavery people have been waging since the 1820s, '30s, '40s, et cetera.

Kai Wright: It's not happenstance, it's explicitly about finally settling the question that everybody is a citizen in the United State.

Eric Foner: Yes, exactly. Settling it forever. Of course, it still opened it away though.

Speaker: A week before the midterm elections President Trump said he could end so-called birthright citizenship with a stroke of his pen.

Speaker: We are looking at action that would reconsider birthright citizenship.

President Trump: A person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It's ridiculous.

Speaker: The president said he might use executive orders, his authority, his solo authority to eliminate the principle of birthright citizenship, which means to-

Kai Wright: The other thing that is introduced here that I think people don't realize. This is the first time equality is introduced into the American conversation at all.

Eric Foner: Equal protection. Of course, all men are created equal, that's in the declaration of independence. It doesn't have legal force, but it's an ideal which people paid tribute to, but certainly, the legal system before the civil war was not based on equality in the slightest. The rights of women were very different from the rights of men. The rights of blacks were very different from the rights of whites. The rights of employers were very different from the rights of employees.

There was inequality shot through, and their whole question of rights is very complicated. Before the civil war, most people, certainly most white people said there are gradations of rights-- There is natural rights, which are those enumerated in the declaration of life, liberty, and the pursuit of Happiness. Everybody's entitled to those, blacks and whites. That's just by being human you are entitled to life, liberty, which means slavery is wrong, and the pursuit of happiness, which is the ability to get ahead in the market or something. Political rights are completely different.

That's conventional, the majority can determine who has political rights, who doesn't, women can't vote, but they're citizens and most states didn't allow blacks to vote north or south before the civil war. They didn't think there was any illogic to that. They can have their natural rights. That's what Lincoln and the Lincoln Douglas debate said, "Yes, the declaration includes blacks, they're entitled to life, liberty, and the pursuit of happiness, but I'm not in favor of them voting. I'm not in favor of them holding office. I'm not in favor of them marrying white people, that's social rights. That's another category, which was a vague term which included individual interactions between people.

Do black people have a right to forced closeness to whites. They have a right to get on a train and sit down on a seat next to a white person. In reconstruction, these concepts of rights go through a metamorphosis. People are debating rights up and down the society. The end of slavery shatters all these old ideas in a way and now people are trying to pick up the pieces and figure out what are the consequences of the end of slavery for the interactions of the American people with each other.

Eric Foner: The 14th Amendment makes the constitution for the first time a vehicle that Americans can appeal to if they feel they're being denied equality.

Kai Wright: That's part one, introducing equal rights. Part two focuses on the one that was, and I would say it still is the most controversial one of all, the right to vote. You got to remember the context here. The civil war had just ended and a lot of people in the north were just scared of doing anything to break up the union again. The most moderate Republicans and the Republicans they were the liberals of the time, the reverse of today.

The most moderate of them, they wanted to give black men the right to vote without overly antagonizing former slaveholders. That means Congress crafted this scared convoluted language that they hoped wouldn't trigger a huge backlash from the south. That became the 14th Amendment's bittersweet second clause. It's incomprehensible but I want to try to just explain it as clearly as we can.

Eric Foner: All right, go ahead. If you could explain it, I give you a silver dollar. Black suffrage was the big dividing line in Congress, among Republicans. You have radical Republicans who say we got to give black men the right to vote. Sadly, women can't vote anywhere at this time in the United States, so we are talking about black men. Why do we need black men voting? Actually Fatia Stevens, he gets up early in the congressional session. He says, "Yes, black men must vote. Why? Number one, it is right, they're citizens. They should vote. Number two, it will keep the Republican party in power. Three, it will keep these rebels out of power in the south.

If Black men can't vote, the old Confederate are going to pour right back in and control everything." There's another weird little complication. The end of slavery ends the three-fifths clause of the constitution. Before the war, representation in Congress is based for each state on the free population and three-fifths of the slaves, or the persons as they're called. Now, there's no more slaves.

Kai Wright: Black people in the south are suddenly going to be counted as full entire human beings five-fifths. This will dramatically increase the official population of southern states.

Eric Foner: Which means the southern states will actually get an increase in their number of members of Congress. That doesn't seem like the Republicans. They don't want to do that to give them more power. The compromise is the 14th amendment doesn't give anyone the right to vote, it's still a state matter, state by state who can vote. If a state does deny any group of men the right to vote then they're going to lose some of their congressmen.

Let's take Alabama, it's about 50% black, 50% white. Alabama can decide who votes but if they say, "Forget it, blacks are not voting." They're going to lose half their Congressman. Now, this was never enforced. Let me just show you this.

Kai Wright: At this point in the conversation Eric reaches across the table for the text of the 14th Amendment and he reads out the one clear part that's buried in all these complicated ideas. The fact that states are supposed to lose congressional seats if they suppress votes.

Eric Foner: It's supposed to be automatic, shall be reduced. The basis of representation shall be reduced. It doesn't say may be reduced. It doesn't say we'd like it to be reduced. Shall be reduced. It is supposed to just happen. Never enforced to this day. Here's another way this relates to the present, voter suppression. I'm trying to start a little club to enforce the 2nd Section of the 14th Amendment against Texas. Texas has 30 some odd congressmen. All you would need would be to suppress 3% of the voters and they should lose a member of Congress.

They have. Texas has excluded a whole lot of people from the voting rolls. So have other states, Florida, so has North Carolina. Georgia went through a whole culling. Some of these states should lose a member of Congress.

[music]

Kai Wright: For me, this complicated section of the 14th Amendment feels like such an important turning point in the success and failure of the American project.

Eric Foner: They missed a big opportunity here. I think you're right. This is what Thaddeus Stevens said when he was the floor leader in the house when it came to the final vote, he gave this great speech in which he said, "We have an opportunity here to create the perfect Republic and we've blown it. Why do I vote for it then?" He says, "Because I live among men, not among angels."

Kai Wright: It's just so interesting because this is the moment as we've done discussed up until now where these principles are introduced into the American idea. These principles that we take for granted now as this is what America's about. It's also the moment where we decided not to fully go to those principles. That just feels like the rest of American history.

Eric Foner: We've been living that problem forever. I agree with you.

Kai Wright: I got to admit this is where I totally agree with Veralyn, our producer who's not been fully inspired by this history. It's just maddening that despite all these words in our constitution still right now one of the biggest questions in our current election is whether every black person who can vote will actually get the chance to do so. It really just makes you throw up your hands. Yet at the same time, I still share Eric's enthusiasm for the ideas in these amendments and how much radical potential they still have.

Eric Foner: All of them have flaws. Some of them have serious flaws, but it's an effort, a halting effort, an incomplete effort to really make the constitution a bastion of equality for the first time. The original constitution doesn't really say very much about the rights of individual Americans in their day-to-day lives. The whole bill of rights was considered only to restrict the federal government from interfering your civil liberty. States could do whatever they wanted and most people's interactions with the government came at the state level not the federal level. You had a chance to really remake the constitution and they do it up to a point, but as you say not fully in tune with the principle.

Kai Wright: Coming up, how those compromises with principle set up the debates we are having right now in the upcoming midterm election. Stay with us.

[music]

Welcome back. I'm Kai Wright. This week we are revisiting a conversation I had with historian Eric Foner back in 2020. He's telling the story of reconstruction and three constitutional amendments that tried to bring about multiracial and multiethnic democracy in the United States. So far Eric's walked us through two amendments the 13th and the 14th and specifically the compromises that Republicans from the north made in an effort to win support from the south which was pointless. Here's Eric.

Eric Foner: The southern states reject the 14th Amendment altogether. Even though it's so imperfect they say, "Forget it. This will lead to black suffrage, this whole business of equal protection of the law. Forget it."

Kai Wright: That's a bit of a wake-up call.

Eric Foner: It shows you you cannot expect cooperation from white southerners, basically. That's what they conclude. The southern states, these governments that are still controlled by essentially the same people who fought to keep slavery. They say, "No, we're not going to do what you say." Congress has to keep escalating the fight. They realize that the only way forward is to replace those governments altogether.

Kai Wright: Am I being too reductive to say that then they recognize that the only way to change the governments in the south is to do it at gunpoint?

Eric Foner: In a sense, they say there are no longer functional governments in the south. These governments are no good. We're going to have to create new governments. To do that we're dividing the south into five military districts. The army will register people to vote black and white. The army will make sure that you have fair elections. It's a temporary military thing because the purpose is to create new functioning civil governments.

In a sense, as one guy says in Congress, "We're setting the clock back to Appomattox. The first time around we didn't really get reconstruction going properly. We're going back. The army is still in control and now what do we do to get a functional government going? The only way to do that is to really create interracial democracy in the south. In 1867, a remarkable year in American history which people don't really recognize as such, tens of thousands of African-American men, most of them slaves a few years earlier are now going to political meetings, hearing political speeches, registering to vote, voting, something like 80 or more percent of the eligible voters core out to vote in the black community. This is an amazing transformation of what the political system is in the United States.

Kai Wright: Of course not all of the United States, not yet.

Eric Foner: Here's an irony in 1867, blacks are voting throughout the old confederacy. They're not voting in New York hardly. They're not voting at all in Pennsylvania. They're not voting at all in Illinois. Blacks get the right to vote in those states with the 15th Amendment. 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. If you look at that language what's interesting and striking it doesn't actually say who will have the right to vote.

It just says you cannot deny people the right to vote because of race, but there are plenty of other grounds you could deny people the right to vote which are not mentioned here. Poll taxes, literacy tests, understanding clauses. Those are what would be used when the south did disenfranchise black voters. Registrars would say, "Guys trying to register, tell me what section 42.3 of the state constitution is? You don't know? You can't vote." It put voting in the hands of these local registrars who were all racist Democrats. That was a weakness of the 15th Amendment.

Kai Wright: Not a coincidental weakness. Can you explain the political debate at the time as to why they wrote it that narrowly?

Eric Foner: There were members of Congress who said, "No, we want a positive amendment. All male citizens 21 years old can vote." If they had passed that it would've solved a lot of problems later on even and including today. No. The fact is that every state regulated its own voting rules and there were northern states who were perfectly happy now to let blacks vote in the south or in their own state but didn't want others. California said, "I don't want these Chinese voting."

In fact, California, and Oregon voted against the 15th Amendment because they were afraid it would somehow allow Chinese immigrants to vote. Rhode Island had a property qualification for voting for immigrants, not for native-born people, for immigrants. They didn't want to give up that right. There are some other prejudices, anti-Chinese, anti mostly Irish Roman Catholic immigrants weakens the 15th Amendment.

Kai Wright: Not in the south but in the north and the west.

Eric Foner: The North had its own restrictions on the right to vote. It's a combination of class, religion, ethnicity, race. The tradition of each state determining its voting qualifications was pretty deeply rooted.

Kai Wright: To this day, there is not even a right to vote in the United States.

Eric Foner: Not a positive right to vote, there was nothing in the constitution that says who shall vote. There are many now clauses that say, "You can't stop people voting for this reason; race. You can't stop people from voting because of sex now, 19th Amendment. You can't have a poll tax for voting. You can't stop them from voting because when they're 18 years old, but as to who can vote, as we've seen, people have been struck off the voting rolls all over the country and these voter suppression laws. The right to vote is still a very highly contested thing in this country, even though your man and woman in the street would say, "Hey, that's what democracy is all about."

Speaker: The US Supreme Court has now overturned a lower court's ruling on how Ohio purges its voter rolls.

Speaker: More than 300,000 inactive voters are set to be removed from Georgia's voter registry.

Speaker: The said removals are likely to affect the most vulnerable.

Speaker: Many of them racial minorities and poor people who tend to back Democratic candidates.

[music]

Veralyn Williams: Kai, okay, let's go over all the good things, all the things that are good about this time. Slavery ended, that's one.

Kai Wright: Slavery has ended, not a small matter and that's now in the constitution, you cannot have slaves. Two, we have established an idea of national citizenship and everybody's a citizen if you're born here. Black people before that weren't citizens, now we are that we've established the idea that if you're a citizen, you are due equal rights, everybody gets equal stuff underneath citizenship.

Finally, we've said black men at least can't be stopped from voting. Not that they have to vote, but you can't stop them. Those are the things.

Veralyn Williams: To me, I'm just hearing all of these like it's this thing happened but right away a caveat. This thing happened but right away I compromise and I can't help but think about the ways in which our very first episode on live, we were asking people, "What do we want from the Democratic Party?" A lot of the responses to that was like, "We want them to stop compromises. We want them to actually go after the things that will make our lives better, our lives different." At what point does the compromise negate the achievements?

[crosstalk]

I am happy not to be a slave, but.

Kai Wright: Listen, this is the thing. There's no question from the beginning, we began from the beginning of introducing these new ideas of how to be a truly multiracial society with shared opportunity. They began compromising with white supremacy around it, and we still are today, and that is frustrating.

Veralyn Williams: To me, the most radical thing they did was write it down. [laughs]

Kai Wright: That's also not true, Veralyn. The point is there was a period in history where in fact, these ideas were being executed upon. The problem is that we want to think of American history as though like it's this linear thing and its linear progress, or it's a linear failure. Yes, some people were fighting it tooth and nail from jump and maybe they will always be fighting it. This was the moment where we said, "Okay, we want to racially just country," and there was a period.

It was short but decades, maybe 20 years in the most expansive, can we not erase what amazing things black people were able to achieve in that time period because that's part of that project is to erase those achievements. We opened businesses, we started newspapers, we've talked about on the show about the way Black literacy shot up, Black schools opened up. There was all this Black achievement happening and that Black achievement came out of these Reconstruction Amendments, as flawed as they were, we still were able to step into them and start doing things.

Eric Foner: The problem is that it faces violent opposition in the south. It's not just normal political conflict but these governments are met with the Ku Klux Klan and groups like that and terrorism really. Again, you can link that era to the present, just via the problem of terrorism. The Ku Klux Klan was like our Bin Laden and Al Qaeda using ultra-violence to try to gain political ends.

Kai Wright: The purpose of the Klan is, "Okay, we've lost the political fight, we have to have an armed rebellion to bring back these former southern governments."

Eric Foner: To bring back white supremacy in all realms. The Klan is number one against Black voting, against Black office holding but they're also targeting school teachers. They're targeting African-Americans who get into contract disputes with their employer on a farm. They target white Republicans in the south. White Southerners who cooperate with these governments. Yes, it's political in the first instance, in terms of their aim is to paralyze these governments, but it's much broader than that too, it's about white supremacy, per se.\

Going along with that is also this retreat on the part of the north little by little, that the will, the commitment to enforce the egalitarian principles of reconstruction wins.

Kai Wright: You might remember throughout the summer of 2020 when the streets filled with people rallying for racial justice, and when many, many people began to engage meaningfully in conversations about the health of our democracy, there was this question always in the air. What will all this add up to? Will it create real lasting change? Reconstruction offers a clear lesson on perhaps the biggest obstacle to that change.

If people get tired of fighting for it. Because history suggests that those who like things just the way they are, they will not get tired. Before I finished my conversation with Eric Foner, I asked him about one last chapter in the reconstruction story, a really concrete impediment to racial justice. Let's talk lastly, about the Supreme Court. In these amendments, Congress understood that they were going to be the protectors of these rights that was the idea.

Eric Foner: That's what it says. Each amendment has a thing, Congress shall have the power to enforce this amendment.

Kai Wright: That is not how it played out.

Eric Foner: On the one hand, Congress dropped the ball but the fact is, yes, the Supreme Court usurped the power to delineate exactly what these terms meant, what these measures meant, who they applied to, how they were applied. Again, linking this era with the present, you see a graphic illustration of what can happen to your rights in the hands of a conservative Supreme Court. We now have an ultra-conservative Supreme Court in this country and the events of the 1870s, '80s, and '90s are the court decisions of those years, should be a warning to us.

Kai Wright: Remember, each of the three Reconstruction Amendments were pretty general principles written in ways that were fuzzy in order to get the south support. The court had a lot of questions to answer about how to apply those principles in real life.

Eric Foner: Little by little, it didn't all happen at once, but over a whole generation, every one of those questions, the court decided in the narrowest possible way, that is to say, they interpreted the amendments very, very narrowly, what they applied to, who they applied to, what the grounds could be for congressional intervention. The result of that was a constant whittling away of the powers that the federal government thought they had put into the constitution to protect the basic rights of the former slaves. In fact, as the 14th Amendment is being whittled away when it comes to blacks, it's being invigorated when it comes to the rights of corporations.

Kai Wright: After all this work, trying to define freedom for black people, which requires redefining everything about what it means to be an American citizen. After all of that, the Supreme Court uses these new constitutional ideas to give corporations more rights.

Eric Foner: If you look at the whole period from 1870 to 1900, there may have been 120 cases before the court that in some way related to the 14th Amendment. Of those cases, only about a dozen actually dealt with the rights of black people. The vast majority of 14th Amendment cases were the Supreme Court limiting the power of states to regulate corporations. Now they said, "States can't pass laws regulating railroad rates, that deprives corporations of their property without due process of law.

There are laws passed limiting how many hours you can work in a mine in a day. That's a violation of people's liberty. The state can't interfere with that." Any effort to regulate how these big corporations operated was struck down by the Supreme Court under the 14th Amendment. 10 times as many cases dealt with the rights of corporations as dealt with the rights of black people.

Kai Wright: Which again, it really puts an incredible point on today's world. It feels like. We had this moment where there was an opportunity to expand individual rights and instead of doing that, it expanded corporate rights, and here we are today. It feels like the world we live in.

Eric Foner: Around 1891 or '92, Frederick Douglas in a speech said, "We are living at a time when principles that we thought had been firmly established are being challenged and overthrown. We're in a post-anti-slavery world." He says. In a way, we are like that too. Principles that one thought had been established are under-challenged now. In a certain way, studying that period can maybe help us understand our own era better and how vigilant one has to be about protecting our basic civil rights and civil liberties, and political rights. If there's one lesson of this whole thing, its rights can be gained and rights can be taken away. It has happened in our country.

[music]

Kai Wright: United States of Anxiety is a production of WNYC Studios. Our theme music was written by Hannis Brown and performed by the Outer-Borough Brass band. Sound designed by Jared Paul. Our team also includes Emily Botein, Regina de Heer, Karen Frillmann, and Kousha Navidar. I am Kai Wright. Keep in touch with me on Twitter at Kai_Wright or find me live each Sunday 6:00 PM Eastern, stream the show @wnyc.org. Or tell your smart speaker to play WNYC.

Till then, thanks for listening, and as always take care of yourselves. [music]

 

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.