Test test test test test test test test test test test test test test test test test the war is about slavery. The Iowa Supreme Court declares segregated schools are unconstitutional under the iowa constitution. So that we have the precursor to brown before there is a 14th amendment. This is clark versus directors of the muska tin schools. Clark will be the u. S. Ambassador to liberia in the 1890s. The long reconstruction is about the changes taking place when a man sues to get his daughter into the Public Schools to be coming in as a u. S. Ambassador to liberia. A year after the war ends, the con fed rats are still running their legislatures and pass black codes and within two years those black codes are all repealed as africanamericans and white unionists begin to take over southern legislature. A revolution in law that takes place, an obvious example to say its now okay for africanamericans and white americans to get married in the south. This is part of the revolution in law in louisiana. I will pass back and circle back to this in a second that says you cannot pass people on river boats in louisiana, thats a violation of the law in louisiana. Blacks begin to hold office. This is a legal as well as a political process because you have to be able to legally vote in order to hold office and able to legally hold office. Blacks vote the black vote helps elect grant in 1868 and helps reelect him in 1872. Hiram revels enters the senate in 1870. For historians of the constitution whether rebels can be a u. S. Senator is an interesting question because the constitution says you have to have been a citizen of the United States for a certain number of years before you can be a u. S. Senator. Under dred scott, revels was not a senator for that many years in 1968 but only two years. No one questions his right to get a seat because everybody understands the citizenship clause was retroactive and he was a citizen by his birth in the United States. Revels enters the senate, the first in the legislature followed by six in the house. There are more than 15 africanamericans who serve in congress by 1890 and two in the senate when Blanche Bruce follows revels. There are a significant huge number of blacks and state Office Holders, sheriffs, county clerks and this is a revolution in politics and revolution in law. In the meantime in the north the same revolution is taking place. In the 1880s, Benjamin Arnett is in green county, madam president , is in which state . Ohio. Ohio. She is a loyal buckeye. And Benjamin Arnett is not from a black district. Green county is an overwhelmingly white county. They send Benjamin Arnett to the Ohio Legislature in the 1880s and he repeals all race discrimination in ohio at that time. My colleague, randy kennedy, will shortly be talking about the 1875 Civil Rights Act and civil rights cases of 1883. I just want to make one prelude to that. The 1883 decision in the civil rights cases is one of the keys to the Supreme Court destroying reconstruction by declaring the 75 act is unconstitutional. The 75 act was what we call an equal accommodations act, saying you cannot discriminate in public accommodations, such as hotels, theaters, street cars, restaurants, et cetera. After that act is overturned by the court, virtually every northern, midwestern and Western State passes its own equal accommodation act essentially doing in state law what the supreme says the federal government cannot do at the federal level, which means when we get to the decisions like plessy, where the court says, well, segregation is fine. We have to understand the court is not implementing the will of the people of the United States because the states which contain the majority of the population in the country have in fact passed laws to say that we are opposed to segregation. Furthermore, if you take this analysis, which is often given by some scholars, well, the court is just following public opinion, obviously its not plowing the majority of the people of South Carolina who are black or the majority of the people in mississippi who are black, who arent in favor of these segregation laws. This theory the court is doing what it must do to placate the majority of the country is in fact nonsense. The court is doing what it is doing because the court is doing what it wants to do. Thats what we need to understand. Just as iowa in 1866, indy greats its school, the Michigan Court refuses to impose the one drop rule whether or not somebody is black when it comes to Voting Rights case. In people versus dean. Dean is prosecuted for voting. The democratic prosecutor doesnt like the idea that blacks are vetting in detroit because detroit voting in detroit because the blacks are likely to vote republican. The Supreme Court overturns the conviction saying we have no definition what it means to be black in this state. Our definition will be if youre half white youre not black and therefore you can vote. This is as close as they can go given the constitutional provisions in michigan but an important step forward. Bat in, ohio implemented the same rule in the 1850s. When we think about what is going on in reconstruction at the Northern State level and congressional level, it is very different than what the Supreme Court is going to do. The michigan Supreme Court notes that there is a distinction between who would be classed as white or not white and no one in michigan had ever quote advanced the absurd notion that predominance of mixed blood on one side or the other was any given standard and has the remotest bearing on personal fitness or unfitness to be in the political process. This is 1866, part of a huge revolution in Race Relations. In 1871, the Michigan Legislature prohibits segregated schools. In 1883, the year the Supreme Court uphold as prosecution for an interracial marriage in alabama, the state of michigan repeals its last remaining restriction on Race Relations which involved interracial marriage. We have the country still going in two directions, most Northern States accepting the outcome. This doesnt mean there is a racial nervana in the north. It doesnt mean bigotry has disappeared. It means at the formal level the Northern States, even states which are notoriously racist, like indiana and illinois, states which were the last two states to restrict black migration into their states, even those states are passing Civil Rights Acts. In 1884, ohio, new jersey, colorado, minnesota passed new Civil Rights Acts in response to the civil rights decision in 1883. In allegheny 85, michigan, indiana, illinois and nebraska passed similar laws. In 1887, my new home state of pennsylvania passes such a law. Kansas had done so in 1874, before the 1875 Civil Rights Act had even been passed, as had massachusetts. If we had only looked at the history i just set out, we would think that reconstruction is going to be a success. Its a success in congress. A success at the Northern State level. A success at the political level in the south. But, of course, this does not happen. One of the reasons it doesnt happen is because the north runs out of energy, because the democrats are resurgent, taking one house of congress towards the end of reconstruction, because many northerners are not happy with the results and political elections, as we learned yesterday, are always very close. The other reason is because the United States as a nation does not have the stomach to have a real reconstruction. We do mobilized the army much too quickly. Bat in, we learned from this experience after world war ii. We do not demobilize the army after world war ii. We do not say we wont have exnazis running around again. We have a serious reconstruction in germany and japan and that was, i think, a fact of policymakers who studied history in college and know maybe we have to do Something Better this time. We dont do it, its a different world, one could have made the argument, the dream you could have kept the army in the south for 10 years is too hard. It could not have happened. I do realize there are Army Soldiers in the south but im talking about a serious military reconstruction. It doesnt happen. The other reason it does not happen because the country does not have the stomach for nuremberg like trials and jeffrey is set in Castle Island for a year and then let go. Even though confederate troops had committed war crimes by the definition of war crimes at the time, slaughtering black soldiers surrendering, capturing and selling black soldiers into slavery. When robert e. Lee marches into pennsylvania, even as he is scampering back to virginia having had half his army destroyed, he takes time to capture free blacks in pennsylvania and drag them back to the south and sell them as slaves. When he invaded maryland, he did the same for free blacks in maryland. Maryland is a slave state but half the black people in maryland are free by the time of the war. The south is committing war crimes but we dont prosecute anybody except captain wartz for andersonville. I want to give you a very quick Supreme Court history. I dont want to go into the details of cases. If anybody wants im happy to give you suggestions. I suppose i would say the first place to start is a book called the march of liberty, a two volume constitutional history of the United States. But im the coauthor of that book and that would be shameless selfpromotion and i would not want anybody to accuse me of that. I will add that my books are out with Harvard University press, again, im shameless. Here are ways the Supreme Court begins to undermine freedom. First is it prevents the punishment and disfranchisement of southerners for their treasonness behavior. In 1867, the Court Hears Two Cases cummings versus missouri and exparte garland in which southern sympathizers had been prohibited from voting or in the case of garland, practicing law under what is known as a test oath. It said, if you cant swear youre loyal, you cant vote and be part of the political process. The Supreme Court says congress has no power to pass this law. The result is very early on, former federal con fed rats are back in the political process in a very strong way. It prevents the confederates from protecting blacks. In u. S. Versus crooksank in 1876 and United States v harris in 1883, the court eviscerates federal laws designed excuse me the court eviscerates federal laws designed to allow the federal government to protect the newly made citizens from southern white violence. Crookshank is the most famous example approximately 100 blacks are killed at a political rally in louisiana. Nothing is done about it. Finally in williams versus mississippi in 1898, the court rules that it is not discriminatory for mississippi to never have blacks on criminal jury trials as jurors because the court says the blacks arent allowed to vote not because theyre black or former slave owners but because theyre all illiterate and ignorant and therefore its proper to keep them off the juries and keep them off the voting rolls and once theyre off the voting rolls, theyre off the juries. They are complicitly racist in the south at the same time, blacks in the north are Office Holders and serving as juries. In the majority of the nation, this ruling isnt going to have any effect. Where the majority of africanamericans live, 90 of africanamericans live, this ruling has a profound affect. In the slaughter house cases the privilege and immunities clause were designed to force the Southern States to accept the bill of rights and apply it to their own citizens and force Northern States to do the same. The notion was you dont have political equality if you dont have fair speech, if you dont have fair jury trials or processes of law. The court says, no, thats not what privileges of immunity of citizenship means. The court of nine very smart justices cant define what the privileges of immunities and citizens are. They say southern blacks are not protected from the who it majority that is now beginning to oppress them. It prevents the government from protecting black civil rights in the civil rights cases, in 1883. I will not go into them because randy is going to talk about them in much greater detail. It protects and prevents the federal government from protecting the black vote. In United States versus reese, we have a situation where a black has offered to pay the poll tax and gone to the clerk and said, heres my poll tax so i can vote and the clerk says, i dont want to take your money because youre black. He shows up to vote. The court says hes not being denied the right to vote because hes black, being denied to vote because he didnt pay his poll tax. Only by the most absurd analysis, the dis scent from Justice George hunt from new york cites two major slave cases, pennsylvania and abe bellman v booth, for the principle before the war congress had the power to protect the rights to southern whites to grab people in the north and bring them to the south. Why cant the federal government now protect the rights of blacks in the south to vote. The legal theories are identical and everything has changed and now not going to give to blacks what the Supreme Court had been willing to give to white slave owners. Reconstruction is being destroyed case by case, chip by chip, argument by argument. It prevents protecting equality in the Southern States through the Commerce Clause. This is really interesting. As we know, the Commerce Clause regulates come mers between states. The court has often said that a state cannot pass a law which interferes for the simple benefit of to the state. Example, indiana cant pass a law that says if you drive a through through indiana, you have to get indiana plates, or you have to get an indian drivers license. That would interfere with interstate commerce. Thats a simple dumb analysis. The Indiana Legislature passes a law that says steamboats, stagecoaches and railroads cannot have segregated seating. Hall, a ship captain, segregates madam decur, an africanamerican woman of both french and african ancestry in louisiana and does not let her sit where she had been sitting, where she had paid for her seat. The Supreme Court says the louisiana law is unconstitutional because it will interfere with interstate commerce. It means when a ship comes into louisiana from tennessee and arkansas, goes down the river, they have to rearrange all the passengers because they have segregated seating on the ship and now they have to integrate. However, this is where it gets to be weird unless you realize the legal theory of the court is not consistent legal theory but racial oppression. In 1890, louisville new orleans and Texas Railroad versus mississippi, the railroad sues to prevent having to move passengers when the railroad goes into mississippi. The Louisville Railroad says, look, people get on the train in kentucky, we dont care where they sit, sit wherever they want. When we get to mississippi we have to move everybody around because of the mississippi segregation law. The Supreme Court says, thats okay. That doesnt interfere with interstate commerce but only interfere if you make the ship or rail segregate but the ship is somehow not interfering with interstate commerce. This is the setup for plessy versus ferguson, which bless his separate but equal but plessy is not the real important case. The key case is the one randy will be talking about in civil rights cases. That is the one where the africanamericans realize we are doomed by this Supreme Court. That is 1883. By 1896, the game is mostly over. Even with the game mostly over there are still persistent people in the south and north who believe in equality. One of the persistent naysayers in the south were the trustees of beretia college in kentucky. Beretia college had been an antislavery college in kentucky although quietly before the war. After the war it is integrated. Kentucky segregates its Public Schools. Fine, they can do that. The court says thats okay. Kentucky seg gaits its university. Thats fine. As we know, kentucky doesnt integrate its Basketball Team until what is now university of texas, el paso, in those days, the texas school of minds defeats them in a National Championship with a team that has about half of the team are black players. Thats what it takes for kentucky to discover, maybe integration wouldnt be such a bad thing. Kentucky then goes on in the early 20th century to pass a law to say private schools cant be integrated. It prosecutes beretia college for having integrated schools. The case reaches the court in 1908. Before getting to that case, i want to Say Something about a famous case that reached the court in 1905. In 1905, the court hears a case called lockner versus new york, very famous case involving whether new york can regulate the hours for bakers for health and safety reasons. A dramatic 54 decision, the court says the law is unconstitutional because the bakers in new york have a right to work as many hours as they choose and the bakers have a constitutional right to offer working as many. The limit was 60 hours a week. The court said if a baker wants to work 65 hours a week that baker should have that right and the owner of the bakery should have the right to hire him for 65 hours a week. Thats the constitutional right of contract. Three years later when beretia college says we should have the constitutional right to contract with blackandwhite students to take courses at our school and africanamericans and white americans should have the right to contract with beretia college to go to an integrated school, suddenly the court has forgotten lockner and says, no, no, no, the state of kentucky has a right to regulate Race Relations as it wants. What we see is almost the end of the civil war to the eve of the election of woodrow wilson, what the court does is destroy reconstruction one case at a time, one little piece at a time. There are some victories. The court does uphold the bans on certain kinds of labor, because they design pionage is a violation of the 13th amendment. The court does require there cannot be laws prohibiting blacks from serving on juries and leads mississippi to get creative, first, we will disfranchise you and then throw you off the juries because youre not a voter and the court buys that. Its not an entire sweep. In the end on the eve of world war i, america is a thoroughly segregated place and its a thoroughly segregated place in the south. Its a thoroughly segregated south because the court has gone along with this. The question is why. I have two answers for that and then i will be out of time. The first answer, i think, many of the judges on the court, especially the years immediately after the war, simply could not wrap their heads around the constitutional revolution of 1865 to 1870. They couldnt understand what the 14th amendment was about. They werent thrilled with the 13th amendment. Some of them had not been antislavery. Some of them had been put on the court, i think, because in the case of president lincoln, he wasnt concerned about the court. He had bigger things to worry about, so he puts Justice Miller on, a former democrat, a justice who had been sympathetic to slave holding before the war although he becomes a republican and the werners quota say we need a werner on the court and he says, who do you want . Miller from iowa is a good guy and put miller on the Court Without asking miller what are your views on slavery and race. He puts david davis on the court, his old friend from illinois. When i attended Harvard Law School, one of the few important lessons i learned was the definition of a federal judge was someone who knew a senator and definition of a Supreme Court justice was a guy who knows a lawyer who became a president. Davis becomes a justice and lifelong democrat and had no sympathy for emancipation or black rights. In addition to this, the people who get to be put on the court in this period tend to be disconnected in politics in important ways. They have not lived in a world where they have met africanamericans, they have lived in a world where they have gone to segregated schools themselves. They live in an all white world. They have no sympathy or understanding for africanamericans. There is one exception to this, right . Justice John Marshall harland, who had been a slave owner before the civil war. He is the voice of civil rights. He understands racism, segregation and understands africanamericans are just as entitled to Constitutional Rights as everybody else. The lone voice and sometimes gets justices to join him this entire period. It was only after world war i we get what will become by the 1940s and 50s the second reconstruction in constitutional law. Thank you very much. [ applause ] thank you very much. Im very pleased to be here and would like to express my gratitude to the United States historical society, a wonderful gathering and contribution to public education. I am going to focus our attention for a few minutes on the long reach of the civil rights cases. So, first, just civil rights cases, civil rights cases were a set of cases decided in 1883, in which the Supreme Court of the United States invalidated very important parts of the Civil Rights Act of 1875. So, in a minute ill turn to the case and well walk through the theory by which the Supreme Court invalidated the public accommodations sections of the Civil Rights Act of 1875. But, first, a few words about the act of 1875. It was an act that had a longest station. It was before congress for five years before it was passed. The act was the brainchild of senator Charles Sumner, and when i hear the name, Charles Sumner, a smile comes to my face. I pass a monument to Charles Sumner everyday. I teach at Harvard Law School university. There is a statute of Charles Sumner sitting down. Charles sumner was one of the greats of the United States senate. In fact, i think a strong argument could be made that there has never been a senator of the United States who was more attuned to the struggle for Racial Justice than Charles Sumner. Charles sumner was a lawyer in massachusetts. He was antislavery all his life. Not only was he antislavery but he was also antiracist. Oftentimes people conflate the two but they ought not be con flait. There were some people antislavery but thoroughly racist. Charles sumner was thoroughligalitaria thoroughly galitarian. He was the lawyer that represented the first segregation case, roberts versus the city of boston. Throughout his life, he was a friend to black attorneys. In fact, he moved for the admission of the first black attorney who practiced before the Supreme Court of the United States. He passed legislation during the civil war, proposed legislation during the civil war to open up federal courts to testimony from africanamericans. At the end of his life, he proposed the Civil Rights Act of 1875. The act that he proposed actually reached further than the act that was actually passed. The act that he proposed would have prohibited Racial Discrimination in schools, in cemeteries, and, this is an interesting one, in churches. Those three parts of the act were rescinded in the congressional struggle. And the act that was passed provided as follows. This is section one of the act. All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of accommodation for privileges and conveyances on water, theaters and other places of public amusement. That was the central part of the act that leads to the civil rights cases. One more thing about the Civil Rights Act of 1875, has to do with a very important thing. The mechanism for enforcement. The act of 1875 had a Civil Enforcement provision, so if you were aggrieved, if you were excluded, lets say from a hotel or restaurant or theater, you could sue the person who excluded you, you could see that person civilly. And if you prevailed, you would get you would be entitled to damages from the person whom you sued. So it had a civil provision. But it also had a criminal provision, so that if you found, felt yourself to be aggrieved, if you felt yourself to have been discriminated against on the basis of race, you could bring the case to federal officials, u. S. Attorney in your locale, and that party would be obligated to bring a criminal action. If the Government Official prevailed, there would be a conviction. It would be a misdemeanor. The person who had been convicted of this misdemeanor would have to pay the government 500, and there was a prison term not less than 30 days, not more than a year. It was quite a bite to the Civil Rights Act of 1875. Now, the civil rights cases. The act was enforced between 1875 and 1883. But then in 1883, the Supreme Court of the United States finally, finally determined to resolve constitutional issues that swirled around the question of the validity of the act. It tells us about the situation of 1883. It came from all over the United States. There was a kansas case, a california case, there was a missouri case, there was a new york case and there was a tennessee case. So, this was a national issue. That involved africanamericans who sought to check into a hotel and were excluded. Two involved theaters, black people who wanted to go to a theater and were excluded. One involved a railroad car. A black lady had booked passage in the ladies section op at railroad car and she was excluded and she sought to invoke the Civil Rights Act of 1875 to redress her exclusion. Those are the five cases that became the civil rights cases. What did the Supreme Court do . The Supreme Court, in an 81 opinion invalidated the public accommodations provision of the act of 1875. What was their thinking . Their thinking went as follows. First, they really focused on two constitutional provisions that might have authorized the act of 1875. They focused on the 13th amendment and 14th amendment. The 14th amendment was really the constitutional provision that they spoke about the most. What they said was as follows. Listen, lets take a look at the 14th amendment. The fist section of the 14th amendment provides that no state shall deprive any person of privileges of immunities, due process, equal protection of the law. What the court focused on was, the phrase, the term, no state, no state shall deprive any person of these rights. Now, what does the Civil Rights Act of 1875 say . The act of 1875 says that discrimination, whatever the source, discrimination with respect to places of public accommodation, Racial Discrimination with respect to public accommodation are prohibited. The law does not talk about the state. The law says that if you are if you have a restaurant, if you have a hotel, if you have a privately owned railroad, you cant discriminate. The Supreme Court says, hey, hold it. The 14th amendment says that states are prohibited from depriving people of these rights. Doesnt say anything about private individuals. All the 14th amendment does according to the Supreme Court, is authorize congress to pass appropriate legislation, section 5 of the 14th amendment, appropriate legislation to effectuate section 1 of the 14th amendment. The Supreme Court says, this is not appropriate legislation because section 1 of the 14th amendment only speaks in terms of state deprivations, not private deprivations. Then, the court elaborate as bit more. The court says, listen, when the state deprives someone of a right, thats one thing. When private individuals prevent somebody from going into a restaurant, thats not actually depriving them of their right, that is depriving them of the enjoyment of their right. Ah, i see you people sort of, you know, raised eye, sort of rolling their eyeballs, raised eyebrows, snickers, saying that seems artificial, that seems legal ease legalese, in a way thats innovative. Thats the way Justice Harland saw it. Well get to that in a minute. That was the theory of the 14th amendment analysis of the Supreme Court of the United States. Bat in, for those rolling their eyes, saying, gosh, that is ridiculous. That is the law under which we live today. When we talk about this case, dont get the impression im talking about some long ago case that has no relevance to us. The civil rights cases are good law. This is our constitution we currently live under. If you think, as many do, if you think that this case involved a sabotage of reconstruction, a sabotage of the 13th and 14th amendments, if you think that, as professor fingerleman thinks that, you must also think that we currently live under a constitutional regime that has sabotaged the effort to bring the former slaves out of slavery. And to make all persons, regardless of race, citizens of the United States. With all that that should entail. Let me talk about the 13th amendment aspect. The Supreme Court majority in the civil rights case is also focused on the 13th amendment. They dent spend a lot time on the 13th amendment. The governments brief, the government defended the Civil Rights Act of 1875. The government said one source of justification for the act of 1875 is the 13th amendment. Why . When people are prevented from riding on railroads or excluded or segregated on railroads, if theyre excluded from put the word segregation off to the side philosophical if theyre excluded from railroads, excluded from par talking in restaurants, hotel partaking in restaurants, hotels, other places of amusement, if theyre excluded in those ways it was those are badges of incidents of slavery. It wasnt like people were willynilly excluded. Not, i dont like your last name. Your last name is smith. People with last names of smith are excluded. No, thats not what is going on here. These people were being excluded because of their race. The governments position was we had racial slavery. Bondage has been gotten rid of, thank god, but there were other indicia of subjogation that were related to bondage and these should be viewed as incidents and badges of slavery that should empower the federal government to prohibit those sorts of actions. What did the Supreme Court say to that . The Supreme Court said to that, thats quote running the slavery argument into the ground. Thats what the Supreme Court said. They really gave the back of the hand to the 13th amendment. Being excluded from a theater, what does that have to do with bondage . If you are impatient, as i think you should be, if you are impatient with what the Supreme Court said with respect to the 13th amendment, you should also be impatient with the current state of federal constitutional law now. Again, to the extent that the Supreme Court really cabins the 13 amendment, narrowed it. That has not changed. That, too, is the law under which we live. Now, one last thing about the Supreme Courts opinion, not a holding, a statement, but i think its an important statement. The Supreme Court said the following near the end of its opinion. I think this statement again will emphasize a point i tried to make already, which is, this case is very contemporary. Its part of our law and our ongoing struggle. Listen to this. Quote, when a man has emerged from slavery, and by the aid of ben neff sent legislation has shaken off the unacceptable con tommy dense of that state there must be some elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws. 1884. 1883. The great mass of africanamericans in 1883 can remember bondage. Slavery is close in 1883. And even then, the spector, africanamericans seeking to be the special favorite of the laws. For sound familiar . It ought to. Now, there was a dissent. Professor finkleman mentioned suggested John Marshall harlem was the one justice who expressed the key inattentiveness to Racial Justice. Largely correct, wouldnt want to go overboard in celebrating Justice Harland. The question and answer, maybe we can get into that a little bit. But Justice Harland did dissent in the civil rights cases. Let me walk through why what was the theory of his dissent. First, 14th amendment. Justice harland responded to his colleagues by saying, there is state action here. You demand state action. You Supreme Court has said that the federal government, the congress is only empowered to pass corrective legislation, legislation that corrects malfeasance on the part of the state. Justice harlan says there is state action here. Individuals wielding power under state authority for the public benefit, thats state action. If you have a railroad, if you have a railroad, the states involved in that. Railroads dont just built. Youve got to get licensing. The state has to help out a railroad in various ways. This goes for most commercial ventures, hotels, restaurants. States involved in all of that, and by the way, what are these things doing . Theyre not just theyre not throwing a cocktail party. They are making they are offering goods, facilities, services to the public, so harlan says even if i were to accept your premises court majority, i think under your own ground rules you could say that there is state action here. Its not just private action. With respect to the 13th amendment, harlan says with respect to slavery, and again, professor finkelman did note that harlan was, had been a slave owner, he says these discriminations are Racial Discriminations. The United States did not just have slavery in the abstract, it had a particular sort of slavery. It had racial slavery, and then to press his point a bit more with respect to the 13th amendment, he said, listen, before the 14th amendment was passed the federal government passed a civil rights law, the nations First Federal civil rights law, the Civil Rights Act of 1866. What did the Civil Rights Act of 1866 do . The Civil Rights Act of 1866 said that all persons in the United States would have the same rights as white people to enter into contracts, own property, testify in court, the classic civil rights. He said the Civil Rights Act of 1866 was passed pursuant to the 13th amendment. Well, you might say what is being able to contract . What is being able to testify . What is being able to own property have to do with bondage . Clearly the people who passed the act of 1866 thought that it had a lot to do with racial slavery. Harlan went beyond simply answering his colleagues, however. He also set forth a theory that in my view is a perfectly fine theory today and that has never gotten the attention that it ought to receive. His theory was that the 14th amendment created something new in the United States. It created citizenship, and that citizenship should have various entailments including the idea that citizens of the United States of america are entitled to exemption from Racial Discrimination. That was his theory. Finally, two final points from harlans dissent, and its a great dissent, its a great dissent. Harlan pointed out and this is a point that was made especially by black commentators of the period. If you read for instance, Frederick Douglasss great speech when the civil rights cases were announced, he gave a speech not far from here, right here in washington, d. C. , Frederick Douglass gave a great speech in which he said, look at this. Before the civil war, before the civil war when congress pulled out all the stops to provide federal power in favor of slave owners trying to recapture their human property, what did the Supreme Court do . The Supreme Court said, well, implied rights, of course it makes sense to give federal backing to the authority of slave owners trying to recapture their property, implied rights. Supreme court very solicitous of the sentiments and the interests of the slave power, and then Frederick Douglass said but look at us now after the 13th, 14th, 15th amendments had been passed. Now what is the Supreme Court doing . Now the Supreme Court is pulling out all the stops to put limits on federal power. Harlan made that same point, and then harlan at the end of his opinion answered the Supreme Courts dig about the special fay favorites of the law, and this is what he said. It is, i submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation through congress has sought to accomplish in reference to that race is what had already been done in every state in the union for the white race to secure and protect rights belonging to them as free men and citizens, nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. Well, the title of my talk was the long reach of the civil rights cases. They did, in fact, have a long reach. The act of 1875 was the last federal law in aid of Racial Justice in the 19th century. There was not another civil rights, federal civil rights law until 1957. If we move the clock forward 60 years, what do we see . If we move the clock forward 60 years, we see that the sorts of discriminations that were at issue in the civil rights cases are still very much at issue. Had there been change, lets just take the lets take lets go up to 1960, 1960. Now, just looking around here for people in this room, 1960 is very near. When i talk to my students, i say 1960, they think that was when the dinosaur roamed. We know better. 1960 was just like that. In 1960 with respect to public accommodations, there were many places in the United States that had laws prohibiting Racial Discrimination in places of public accommodation. Many states prohibited that sort of Racial Discrimination. Did all states prohibit Racial Discrimination in places of public accommodation . The answer is no, and here i can go autobiographical because now its my lifetime. So in my lifetime, 1960, i clearly remember riding on big holidays from washington, d. C. , which is where i grew up, to columbia, South Carolina, where i was born, and on those drives i was very young, i just thought it was the case that my mother just liked putting together, you know, baskets of food making sure that there was lots of soda. I just thought, well, you know, its party time. This is just she just wanted to do this. I thought that my father was simply being, you know, just regularly vigilant when he made sure that the car was in good working order before making that ride. It was only later that i learned that that eighthour drive from washington, d. C. To columbia, South Carolina, was a drive which to my parents was a very perilous drive. It was a drive in which they did not know where they would be able to go to the bathroom. They knew that they wouldnt be able to, you know they didnt want to take any chances about eating, drinking. They wanted to create a car in such a way, they wanted to make the car a place where we were completely selfsufficient so we could cut down on any unnecessary interaction with the outside world. As a child i did not know that. Later i knew that, and that was because Racial Discrimination was rife, and there was, again, in the states that we were traveling through, virginia, north carolina, South Carolina, there werent any laws prohibiting Racial Discrimination in places of public accommodation. Folks got tired of that, said there ought to be a law. You remember many people in here will remember the sitins. Many people in here will remember the childrens crusade in birmingham, alabama. There ought to be a law. Finally, belatedly, john f. Kennedy said, yeah, lets pass a law. There was a lot of controversy around title 2 of the 1964 Civil Rights Act under which we live, that prohibits Racial Discrimination in places of public accommodation, and one of the reasons why there was so much controversy around it was because of the civil rights cases. Question, was there constitutional warrant, was there Constitutional Authority for congress to pass a law prohibiting this sort of Racial Discrimination . That was a big issue. The kennedy administration, the Johnson Administration responded to that question by saying lets pass a law prohibiting Racial Discrimination in places of public accommodation, but lets not base it primarily on the 14th amendment. Lets forget about the 14th amendment. Why do we need to forget about the 14th amendment . Because of the civil rights cases. Instead, lets pass the law invoking the Commerce Clause. In other words, lets not say that people in the United States are entitled to public accommodation free of racial impediment because thats what decency requires, that thats what human rights requires, that that is in keeping with the ethos of american democracy, lets not say that. Lets say it will be good for the Gross National product if people drink more cocacola and eat more hamburgers. That is the basis on which title 2 of the 1964 Civil Rights Act was passed. That is the basis of the federal law on which we currently depend. Let me conclude with three quick points, one, why does this matter . I think its useful to know everything there is to know about our world and anything that has happened. I think, frankly, that knowledge for knowledge sake is a perfectly good justification. If that was all there was to it, fine. I think thats a perfectly fine reason for people to do research, for people to talk, for people to write. That in and of itself, it seems to me, is perfectly fine. Point one. Point two, as ive emphasized throughout this my remarks, there is an instrumental reason for this knowledge. This is our law. If you are critical of the civil rights cases, that means you are critical of the current state of american law. I think you ought to be critical of the current state of american law, which brings me to my third point, which is the pall of redemption, the pall that settled on the United States in the aftermath of reconstruction, the destruction of reconstruction, and it was destroyed, that created a shadow that is still very much over us. All of the struggles of reconstruction are struggles that face us today, and in the effort to better address what we now face, you cannot be better armed than to be attentive to what happened in the reconstruction era and afterwards. Thank you very much. [ applause ] i was wondering if you could expound a little bit more on Justice Harlan and your views of his reputation . Sure. Can you hear me now . Yeah. First, i want to really salute Justice Harlan. Were all captives of our socialization, that he changed so dramatically in his life really makes me honor him. So i think very well of harlan, but why did i why did i throw in that asterisk . Well, it has to do with things like this. In his most famous dissent in plessy versus ferguson, harlan distinguishes two different peoples of color. He he really was a champion to a large degree of africanamericans, and one of the things that affected him very deeply was the presence of africanamerican soldiers. That mattered a lot to him. Basically he said, you know, listen, africanamericans helped the United States remain the United States and lets not forget that. He compared the treatment of blacks with the treatment of people from china, and one of the reasons why he was especially critical of the treatment of blacks, he says, listen, i mean, on railroads in louisiana people from china can ride with white people, but blacks cant . That shows how crazy this is. But he was not very attentive to the rights of people from china. In a number of cases, i mean, again, remember, the United States of america didnt just didnt just become a multiracial society. There have always been groups, various groups. Its not just blacks. Its not just whites, you know, native americans, people from asia, and harlan was actually not very good with respect to other peoples of color. Even with respect to the black white issue, in in fact the very year that the civil rights cases were decided, 1883, there was a case decided back professor finkelman made reference to it, pace versus alabama, the issue in pace versus alabama was whether the state of alabama could punish interracial fornication more harshly than intraracial fornication, and the Supreme Court in an unanimous opinion said, oh, no problem with that. After all, white people are being treated just the same as black people, you know. If youre engaged in interracial fornication, both parties are being punished more harshly. Whats the big deal . That essentially was the same logic as plessy versus ferguson. It was a unanimous Supreme Court decision. Harlan did not dissent. I love giving that case out. My students loved getting the case because it took all of one paragraph for the Supreme Court to uphold the alabama statute, so harlan had a mixed record, but overall again, i give that as an asterisk overall, harlan distinguished himself on this court as a forward looking person who did give voice to the highest aspirations of the reconstruction experiment. Yes. I have one question for professor finkelman. Garrisons constitution, the covenant, how it was made appears in the National Archives in the prologue quarterly. Could you lift your microphone up . Oh, yes. That article is cited in gordon versus the National Archives in records administration. It was to enjoin the office of the federal register from certifying certificates of vote from states that awarded electors on a winner take all basis that does not have a winner take all stature, winner take all, you know, code, and in the absence of that, it argued that it had awarded its electors the fairest allocation of electors proportionally. It was in violation of the second reduction clause of the 14th amendment. My question to you is could you expound on how an Electoral College origins as it fell on the basis of representation has been biased towards certain segments, elements for society in its application . And for okay. For randall the question is the mr. Gordon raises some weighty issues having to do with the consequences of results of an electoral system where minority and minority number of votes are not recognized. That is when theres a winner take all system, that is a quote from district judge henry h. Kennedy jr. Youre not related to him . Its my brother. Okay. Well, thats in gordon versus the house of representatives, and it was to enjoin the clerk of the house from recognizing representatives from states that award the electors on a winner take all basis that does not have a winner take all code. In absence of a winner take all statute, it violations the penalty of the second section of the 14th amendment. So my question to you is why is that civil rights litigants have been avoiding and do not address the potent remedy in the second section of the 14th amendment in addressing gerrymandering as an issue . I submit that partisan abridgment is a more potent argument for the second section than equal protection jurisprudence. Okay. So i think the only real answer to this is for the president of the Capitol Historical Society and chuck and lauren to plan a conference next year on voting and electoral representation because the question you ask is like a whole other paper and a whole other conference. But having said that, i would just make one point. The Electoral College is introduced in the Constitutional Convention as a way of figuring out how to count slaves for the purpose of electing the president when slaves cannot vote. So at the Constitutional Convention, james madison, the father of the constitution, says that the most appropriate thing would be for the people of the country to elect the president , and then he says there are go two problems with that. The first problem is that Voting Rights differ from state to state, but that would have been easy to accomplish. You could have simply said if a state chooses to have to disfranchise some of its population, then it loses out on president ial elections, and that might encourage states to expand their franchise. To give you an example, new jersey allowed women to vote. No other state did. If youd had a popular election of the president , all the rest of the states would have said hey, new jerseys got a good idea. We want women as well as men to vote. Massachusetts allowed free blacks to vote, and so perhaps, you know, virginia would have said we ought to let free blacks vote, too, because that will give us more votes. The other problem, which was not for which there was no simple solution is madison notes that if you have a direct election of the presidency, of the president , the slaves will not be factored into the election, and so when you have a country where there are 700,000 people who were held as slaves and where the size of a states population is affected by this so that virginia has the largest population, but if you only counted freeway people, pennsylvanias bigger. North carolina is the Third Largest state, but it drops to fifth if you dont count if you dont count slaves, so what madison says is that if we elect a president on the basis of the popular vote, essentially we southerners arent going to be able to elect people because the northerners will out vote us because they let men vote without regard to race and with the exception of north carolina, we dont and furthermore, we have all these slaves who as noncitizens obviously cant vote. So instead what the convention does is to create the Electoral College and electors are based on the number of representatives in congress and the number of representatives in congress are based on the whole number of free people and 3 5 of all other persons and of course those other persons are slaves. So that in 1800, Thomas Jefferson would not have been elected president if, in fact, there had not been an Electoral College because the free voters in the north would have outvoted the free voters in the south,. Similarly, in 1824 without the Electoral College, it is possible that john adams would have won a popular vote. We dont know because we dont have all the votes for 1824, but the point is that the Electoral College is created to allow the south to gain political power in the president ial election because of slavery. While we do not have slavery, and we do not have a 3 5 clause anymore, we are still saddled with this weird system that has historically allowed people to be elected president who lost the popular vote, and as far as i know, theres no other election in the United States where thats the case. Im sure when mayor campbell ran to be mayor, she didnt say, oh, the other guy should win because he got fewer votes than i did. Thats not how it works except in the president ial election. Thats as far as ill go because anything else would take weeks. There was a lot in your question, just a couple of points. Ill start with and here i think there might be some distance between professor finkelman and myself. I think that we tend to celebrate our constitution far too much, both the constitution of 1787 and the second constitutional regime, the reconstruction amendments, and the fact of the matter is that there was a fight over the 13th amendment, a fight over the 14th amendment, a fight over the 15th amendment. They were all matters of compromise. They have good points to them. They have bad points to them. I dont think im not satisfied with the 13th amendment. Im not satisfied with the 14th amendment. Im not satisfied with the 15th amendment. Obviously my comments indicate that im very critical of the Supreme Court of the United States and the way it has handled those amendments but the Supreme Court of the United States is not the only culprit. The framers of the 13th, 14th, and 15th amendments, they had their own problems. The society that gave us the 13th, 14th, and 15th amendments were thoroughly racist, a thoroughly racist society. It should not be any it should not be surprising that the 13th, 14th and 15th amendments would be limited. It would be extraordinary were that not the case. Now, to go to your question about the 14th amendment, and particularly the second section, the section having to do with voting, a couple of points. One, it is a section of the constitution that gets very little attention. Its hardly mentioned in constitutional law classes. I took constitutional law, no mention at all to that section of the 14th amendment. 14th amendment, by the way, is a very long amendment. There are lots of parts of the 14th amendment that people in law schools typically dont talk about, and this is one of them. If your answer if your question is why has by the way, what does that portion of the 14th amendment say . That portion of the 14th amendment says the following a state that a state loses congressional representation to the extent that the state prevents a certain portion of it population from voting. That part of the 14th amendment basically said we will allow you to exclude people from voting. We will allow you to exclude blacks from voting. Its just that youll have to pay a political cost for it. Thats what the 14th amendment said, and by the way, the 14th amendment also said in that same provision, the following. This pertains to men. This section of the 14th amendment was the first time in the history of the United States constitution that a gender line was drawn, and it caused really hard feelings because there were feminists who said to people like, for instance, Frederick Douglass, hey, i know good and well youre not going to go along with this 14th amendment that excludes women. Frederick douglass went along with the 14th amendment, and it caused really hard feelings. The 14th amendment is deeply flawed, in other words, so by the way, is the 15th amendment. There were various proposals you asked about voting there were various proposals in 1870. The 15th amendment under which we live was the narrowest. Why didnt the why didnt the Congress Just pass a law saying, well, you know, if youre an adult you have a right to vote. They didnt say that. They said you have a right to vote in so and you have a right to vote actually, they dont even say you have a right to vote. What they say is states cannot exclude you from voting on a racial basis. They dont say you have a right to vote. They say, they prohibit states from excludeing people. Well, you dont have to be a Rocket Scientist to understand how you can get around that. There were people in 1870 who said, well, hold it. Just suppose a state imposes a literacy test. Remember this is 1870. Black people had only been freed from slavery for five years, the great mass of black people were i will literal in 1870. Just suppose you have a literacy test. Just suppose you have a property test. You could easily disenfranchise people if you wanted to, and that was stated, but for other reasons, for other reasons. Some having to do with just plain out racism. We got the 15th amendment that we are stuck with. So you know, i think, you know, one lesson to be drawn from our discussion of reconstruction and particularly the reconstruction of amendments is that our constitution has some good sides to it, really good sides. Im not trying to be facetious here. In certain ways the constitution of the United States is a remarkable document that has done some really good in the world. On the other hand, there are big parts of our constitutional regime that are rotten and that need to be amended. Can i just yeah, i just want to say im trying to figure out where you and i disagree here. Im not looking for disagreement. Yeah, and i just want to add one footnote, and then im going to see if theres somebody else who has a question to ask, and that would be this, that one of the deep flaws of the constitution, which in part was created to protect slavery, is the virtual impossibility of amending the constitution. In order to amend the constitution, you not only need twothirds of both houses of congress, but you need three quarters of the states. To understand how powerful this was, in 1860 there were 15 slave states. There were the 11 slave states that seceded to create the confederacy, plus maryland, and delaware, kentucky and missouri. If those states still had slavery to this day, you could not amend the constitution to end slavery because you would need 45 free states, and although im not good at math, i do know that 15 and 45 would mean wed need a 60state union. We would have to subdivide california a number of times to get there, and so when you think about the structure of the constitution, the structure of the constitution prevents the National Government from ever touching slavery, and the southerners at the Constitutional Convention knew that. They came back to their state ratifying conventions, and they said this is a very good deal from us, for us. The National Government can never interfere with slavery, and for those scholars and there are a number who make this argument that the constitution didnt protect slavery or that the constitution was somehow had the seeds to end slavery, theres a recent book on it by a historian at princeton making this claim. I would simply say show me what clause of the constitution you would have used to end slavery, and the only clause that you have is the power of congress to make war on its enemies because nothing else is going to work. And that slavery required a 650,000 life down payment. Just a footnote, the 14th and 15th we have to if there are other questions, otherwise were done, right . In this age of the second jim crow as its been called, particularly like your opinion about whats happening in florida where the voting where the people voted to give the voting franchise to exfelons yet the Florida Legislature has progressing through its sessions a requirement that all court costs be paid by exfelons, which is essentially i think, maybe a poll tax . I dont know about the and i havent kept up with the ins and outs of what happened in florida. I think it is in what is for me a rather dismal political season, that was a ray of light. I mean, you did have a state in which you have a referendum in which, you know, people who are not under the burden of disfranchisement vote to, you know, make voters of people who are frankly amongst our most ostracized members of society. You know, florida voted by referendum to enfranchise felons. Well, tell you the truth, i salute the people of florida, and for people who are looking for, you know, a nice research, it seems to me that would be i would like i dont know all there is to know about that. Im going to mark it down on one of my things to do, how did that come about . Because however it came about ought to be studied, and i would hope that it would be disseminated and there would be other people in other parts of the country who did similar things. One other point id like to make, you know, weve been talking a lot about federal developments. One of the things that professor finkelman, i think, really accentuated in his remarks was the importance of local developments, local developments, county developments, municipal developments, state developments. Obviously the federal government, the Supreme Court of the United States very important, but there are 50 Supreme Courts, and people ought to remember that. The congress of the United States very important, but then there are the state legislatures, and so there is a lot of you know, weve got lots of governments in the United States, which means that there are lots of levers to pull, lots of opportunity to try to make our democracy better. Im getting the signals from the powers who run this that our time is up. Thank you. [ applause ] all we, we are previewing whats available every weekend on cspan3. Lek curse in history, american artifacts, real america, civil war, oral histories, the presidency, and special event coverage about our nations history. Enjoy American History tv now and every weekend on cspan3. Weeknights this month, we have American History tv as a preview of whats available on cspan3. Tonight, a look at a conference at Purdue University titled remaking american political history. We will feature programs from the gathering, focusing on u. S. Politics and government from the earliest days of the american republic. American history tv airs 8 00 p. M. Eastern on cspan3. The New York Times photographer doug mills talks about photos covering president trump. Obviously he enjoys having us around. I believe despite his constant comments about fake news and the media and so forth, i really feel he enjoys having us around because it helps drive his message, helps drive news of the day which he can do every day and does every day. He is constantly driving the message. Therefore, having us around. Next, Clemson University professor Vernon Burton on experiences as an Expert Witness for plaintiffs in Voting Rights cases in South Carolina and texas. Professor discussed the reconstruction era and constitutional