Mistakes in that film can be attributed to that book. [laughter] hes also produced bedford books has a wonderful series of historical documents, and he is the editor of the documents for the emancipation proclamation. If you are a history teacher, make sure you assign it. He is now working on two different books, one about citizenship which he originally worked on, but he is now more focused on a book about, when did the civil war really and . It didnt really end with appomattox, which is the mythology. Part of the talk today is dealing with that. It is my pleasure to introduce michael. Please give him a warm welcome. [applause] prof. Vorenberg thank you. That was very nice. Dimension of the collection of the emancipation proclamation and a series in which it appears some of the bedford book series, is a wonderful series. I can say i was inspired in part and can and should be bit to brooks own book. Can contribute it to brooks own book. I appreciate appearing at the u. S. Capital historical society, and i think the program i thank the Program Organizers and the head of the capital historical society, and lauren, who helped organize this. It was a lot of work. I was asked to submit a title, and they gave this title, a work it is a work of deception because he could men any number of things, the 13th the 14th amendment as an active war. It could mean it was an act of war by the u. S. Congress against the south itself, and that is how it was seen by southern whites. You go to many websites, those sponsored by neoconfederates, and you ask to see the text of the 14th or 15th amendments, they will often include the phrase ratified under duress. [laughter] the ratification of the 14th amendment was required by congress, and so i will not be talking about that, but if you want to talk about that i am happy to try to deal with that in the questionandanswer. There are a number of things we will have to quickly go through as i want to leave time for questions. That is one of them. This talk actually isnt even that much about the 14th amendment. It is much more about the act that predated the 14th amendment, but was effectively its foundation, and that is the Civil Rights Act of a 66, which has now been of 1866, which has now been mentioned a number of times. It is a terrifically important act, and it had a number of features which i will mention. Just a couple of things that werent mentioned last night, one now, and i will mention other later. A number of legislation for reconstruction was made null or deemed unconstitutional one way or another, but especially by the u. S. Supreme court. Arguably the most farreaching piece of legislation during the reconstruction is the Civil Rights Act of 1865, also called the sumner act because it was such advocated by charles sumner, though he died before it was passed. It very much anticipates the civil right movement of the 20th century. It prohibits all sorts of things like discrimination on railways, in hotels. It demands that africanamericans be on juries. It is a wonderful thing and even establishes Civil Penalties for those who violate the act. But the u. S. Supreme court deems it unconstitutional in 1883 in what is called the Civil Rights Acts of 1883, so it is not on the books. By contrast, the Civil Rights Act of 1866 is still on the books. Not in its original form this is complicated though different pieces of it appear in different places in the u. S. Statute books, and the u. S. Code. I can talk more about where they appear if you would like. But that means that on the books is not just a kind of vestige of reconstruction, but something that can actually be used and is actually still used for civil rights cases. Not as much as other things, but it is still out there. A part of the Civil Rights Act i am going to end up talking about is the part that very rarely come a if ever, and almost never gets talked about. These are the last couple clauses which have to do with the army, the u. S. Army and its role in reconstruction. This is where the title of my talk comes from, the act of war. The role of the army, but in particular, the state of war that exists in this country well past what is often seen to be the end of the war, which is the appomattox surrender of april 9, 1865. Before i get to all of that, a quick review of the Civil Rights Act and again, i say it is the 14th the moment, and i will get to the 14th, but it is really more about the act because the first clause of the act mostly ends up in the 14th the moment this is the 14th the movement, the first clause of it. Im not going to go through it now because it takes a whole semester of constitutional law in law school. [laughter] as a professor mentioned last night, it is more written about and more cited than any other piece of the constitution, and it has birthright citizenship, which has been discussed. It has these most famous of clauses about states not being allowed to deprive a person of life, liberty, or property without due process of law, or to deny to any person in any jurisdiction equal protection under the law. What is a citizen versus what is a person. Is a very common business that we will spend ages trying to figure out and will never do it. The Civil Rights Act of 1866, which predates the 14th amendment not by much the foundation for it is enforcing the 13th of movement, which is about the abolition of slavery. Yes, i did write a book about it before spielberg did his film about it. Section two says Congress Shall have power to enforce the act by appropriate legislation. During the debates, the opposition to the amendment in particular are saying, what does that mean and what are you going to do . The reality is, i dont think the republicans really new that if they didnt have a set program in mind over the summer of 1865, and becomes clearer and clearer, about what has to be done in order to enforce abolition. So the Civil Rights Act of 1866 is in large part and enforcement act of emancipation. In other words, it is entirely linked to slavery and the end of slavery. Slavery ends and now it is time to create rights, that is wrong. This is as much about the abolition of slavery as about creating some kind of new system. It is all tied up together. I have some passages on the black codes that could talk about why you need the Civil Rights Act. Im not going to do that. Here is the Civil Rights Act of 66 in contrast. It passed in congress before it got the veto from johnson. There was tremendous celebration through the halls of congress, which is depicted by this artist. Its language is slightly different from the 14 the moment. Im just going the 14th amendment. Im going to rush through this because im actually not talking much today about the first section, which is the section that gets all the attention. That is here. Birthright citizenship is in both. This definitely have to do that making with those that are now free our citizens, a way to overturn the dred scott case. Although an act cant do that, and amendment has to do that. Whereas the 14 the moment will talk about the 14th amendment would talk about due process and equal protection, department highlighted here in the Civil Rights Act is that the people who are now free will have full and equal benefit of all laws as is enjoyed by white citizens. You heard about this last night, and if you werent there i will does remind you, what this does is remarkable in that white citizens, that phrase establishes the baselines of rights. It takes effectively, if you will come of the highest pinnacle of citizenship, which is white citizenship, and says that is now the basis we all work from. That is a remarkable statement, the word white appearing in the constitution. It had appeared in other ways as a discriminatory mechanism. Is used effectively as an empowering mechanism. The other thing is that the beginning of this, the full and equal benefit of all laws, full. What does that mean . That word does not appear in the 14th amendment, and we will never know what it means. But one could really have some interesting conversations about what benefit of the law might possibly mean what full benefit of the law might possibly mean. It is time not to the 14th at this moment, but to the 13th. That is, what is the opposite of slavery . It the full and equal benefit of the law, such that the laws of all will correspond to the laws of white citizens. That is the opposite of slavery. So here i will show another image of this one other thing to talk about is, if you get hung up on the wording of all these things, the word citizenship appears in the Civil Rights Act, and the 14th amendment. That was not always the case in the earlier versions. The Senate Version said no discrimination against the inhabitants. Now we get hung up and fetishize this word citizen. Is the citizen the same as a person . It is incredibly relevant Immigration Law today because if someone makes it to this country and is not yet a citizen, do they have any rights before the law . Today have access to the courts . This is a truly do they have access to the courts . This is a truly crucial question. Is incorporated into these pieces of legislation. I can talk about those later if you wish, but what i really want to talk about have to do with some later provisions of the Civil Rights Act. One last other caveat that has not been said about the Civil Rights Act, but a lot of people in the in the room know this well, is that the construction of this act is in very many ways, they feel the act by standing on its head the fugitive slave law of 1850. It empowers officers at the state and local level to be federal officials for the sake of recovering fugitives, which is to say escaped slaves and it is used to kidnap free blacks it is a tremendous act of federal power being imposed on them. So now in the Civil Rights Act, they use the exact same language and structure in some very complex language to say that the federal government will now do the exact same thing at all these state and local officials being empowered to work on behalf of the state, but on behalf of the slaveowner and against black freedom, but for the sake of enforcing these rights. So it stands the fugitive slave law on its head. I am not going to talk about that either. [laughter] that all gets a lot of attention. Heres what i am talking about. Am talking about the war and army. The Civil Rights Act in the 14 the moment are generally seen as peace time pieces of legislation. The war ends, and then the country and Congress Gets into the business of saying, now that we are at peace, what is this nation going to look like . Right away we have some problems. Those of you who do not know, the legal end of the American Civil War given by the Supreme Court, by the War Department, is august 20, 1866. That is more than a year and a half after the passage of the Civil Rights Act. That is more than a year after the adoption of the resolution and in the 14th amendment to the states. United states at this time is still in a state of war. Congress certainly sees it as such. What happens on august 20, 1866, is kind of boring, but it ultimately is that president Andrew Johnson, who has been getting a lot of attention in these last 24 hours, decides that he can declare an end of war, so he starts to do in april of 1866. He declares that there is what he calls a cessation of hostilities, except in texas. Then in august, he says texas also. So august 20 is now that everywhere as a cessation of hostilities. This has always got me thinking about the president s power which is not given in the constitution to declare and and of war. Declare an end of war. Is not clear in the constitution or anywhere else who or how or what or where or why there is declared an end of war. It is not going to work with the confederacy, which has not been a knowledge of the country. To have a peace treaty is not thinkable. So how then do you have an end of war in a rebellion . This is what johnson is up to when he declares an end of war. Congress doesnt accept that declaration, by the way. They take this to 1871. Last night a professor mentioned a book by Gregory Downes called after appomattox. I highly recommend that book. Anytime i Say Something which is confusing or you want to know more, go to that book because it will be a lot clearer and give you more information. It is a wonderful book about the way in which the war and i dont mean this in a cultural sense, like, we are still fighting the civil war i mean the actual state of war that exists continues well past appomattox. And appomattox holds this lovely place in american memory as a moment of ending, with the gracious robert e. Lee signing what effectively can almost be seen as a peace treaty, which it most certainly wasnt. He was surrendering one army, and it wasnt even the biggest army of the confederacy in the field at that moment, and april 1865. He is surrendering one army on april 9. The day after, grant and lee get together and have a conversation. We dont have a creek transcript we dont have a transcript, we have a memory of the conversation. Grant says, it would be wonderful if you could get Jefferson Davis to get all of the armies to surrender. Lee says, i cant do it because there is no way davis will surrender. And davis never does surrender. They got him locked up in fortress monroe and he will not surrender. That is the day after appomattox when lee says there is nothing i can do, and furthermore says, this war can go on for a long time. He says, it is a big country, meaning theres a lot of confederate troops. It is not going to put down this military struggle. And yet, here in appomattox, virginia or appomattox courthouse, as i should probably say [laughter] next to a gas station now, is where our nation reunited, so always made whole and perfect by the appomattox surrender april 9, 1865. Not so. The war continued legally. The Civil Rights Act of 1866 has its first clause. These are the very complicated mechanics by which it is enforced. This all has to do with legal arrangements dealing with marshalls and deputies, attorneys general, all these people who enforce law on the civil side of things. But then in the last two sections, eight and nine which get almost no attention only because they are never used, they are kind of weird looking basically says that the president of the United States has the power to use the army to enforce this. One of the reasons this is a get attention is because the president of United States was Andrew Johnson, and it was pretty clear by the time it was vetoed that johnson wasnt going to use the army for this purpose. But nonetheless it gives the president the power to use the army to enforce civil rights. That is what article eight does. Article nine says a little bit more about the power to apply such as shall be necessary to prevent the violation and enforced the due execution of this act. Let me read that clause a little more closely. To prevent the violation and enforce. Prevent the violation. What this means, the people he knew this new exactly what it meant, is that the army could act preemptively not only could it wait until some violation of civil rights had occurred, some violence had occurred against africanamericans or white supporters of the republican agenda they could act preemptively. If they do a conspiracy was afoot and the army often did they could act in anticipation of this. Now this language effectively then is the language of preemptive war. I dont say that to be ironic. That is when we began to hear this phrase, preemptive war, a lot. We were going into war to prevent a war and to preemptive war doctrine to preempt a war doctrine. They were weapons of mass destruction, we were going in to get them. Under president george w. Bush, this doctrine gets elevated to a new level of validity. The lawyers come out and sustain it. But it is actually a very old doctrine. What i want to argue here today is that it goes back to the 1830s and i will mention how that happened well before it is used to justify the invasions of iraq. It is used in the Civil Rights Act. That is the language i just showed you, the language of preemptive war. It is the language as saying, we are going to use the army not just to punish those who have committed wrongs, but to stop those wrongs from being committed before they are done. That is a lost factor of this war, of this act i should say, and of the holy ghost of reconstruct of the whole ethos of reconstruction. What are the origins of it . The immediate origins go back to the summer of 1965. The bestknown International Lawyer in the country in terms of someone who litigates international law, in june of 1865, delivers a speech in boston and says, when is the war over . It is not over. This is june of 1865, months after appomattox. We are in the attitude and status of war today. When is the war over . We hold the enemy in the grasp of war until we get from it what we fought for. That is the end of slavery. He goes on and says, they have to have voting rights. May be you should have emphasized more economic redistribution of land, all those sorts of things, but the thing he does talk about his voting rights. About is voting rights. The senator from illinois is the primary person and the senate who advocates the 13th amendment, pushing for the Civil Rights Act. He is the clever one who sticks these preemptive war pieces into the legislation. You dont have any smoking gun telling us why he did it, but we do know something about where the language comes from. Like much of arcane law, a comes from canada. It comes from canada. [laughter] i have to take you back to the 1830s. I dont have time to get into detail on this. The english in canada were having struggles in the 1830s with rebels, especially those whom supported the irish cause. There is this episode that we call the carolina affair, because the caroline was a ship. In 1837 it was docked on the american side of the niagara river. It was suspected by british authorities to be in the process of delivering troops, and especially arms and goods, to the canadian rebels on the other side. For this reason, british authorities across the river, set the ship on fire, and let it float over the niagara falls. Now, this can obviously be seen as an act of war by britain against the United States. Britain uses its defense that it has the power to act preemptively because if it knows the ships across the river and prevents trouble, why wait until he comes across the river . Burning now. This is because burn it now. This has become a huge dispute in International Relations which is not resolved until the 1842 webster ashburton treaty. Daniel webster is the webster of that. Even before that, congress effectively passes legislation saying that what the brits did was actually ok. That and i am not going to read this this is an act in 1838 that basically says in the last section that is the brits can do it to us, we can do it. It empowers the u. S. Army to prevent the violation and enforce the due execution of this act. To prevent. This is 1838. This is exactly the language trouble uses language trumble uses. It is past with the approval of martin van buren, then the president , who was a democrat. Is a republican act, the Civil Rights Act of 1966. Then i say it with your president , a democrat, who signed off on this stuff. He did the same thing with the 13 the moment. The complaint, you are over the 13th amendment. To the complaint they complained, it was a democrat who basically wrote that. So he was very deft in politics in this way. He is putting it there because he understands how important the army is to making reconstruction happen. It is also their because he is hoping to persuade Andrew Johnson to sign it. If johnson feels like he has this power as president , theres no real reason to disbelieve him in a conversation with johnson. Johnson agrees he would sign it. The fact is that johnson didnt actually read the act, so he doesnt know what he was promising to sign. Johnson was actually not much of a reader. [laughter] which, i guess has its disadvantages. [laughter] so anyway, as weve heard, congress overturns the veto. You may ask, so what . Who cares . It is a dead letter. Going to move through a lot of things quickly. It wasnt a dead letter. The story that comes next is quite complicated. It will appear in an essay, a particular piece that appears next year and a book that i am writing. The u. S. Army has a significant presence in the occupied south all through 1866. Of course, as you have heard already, johnson once the army pulled out. Is the commanderinchief. He has that power. On the other can on the other hand, he has to work carefully with the highest commanding person in the army, general grant, who is extraordinarily popular. You dont want to run afoul of him. Stanton and johnson actually worked together just fine for a while because they had the common cause of trying to find abraham lincolns assassins in the conspiracy. That slowly falls apart until johnson will fire stanton, this ultimately leads to his impeachment. Before all that, while stanton is still in office, is desperate to keep the army in the south while there are all these efforts to take the chief out of the army. These efforts are coming from johnson, and ultimately the real hammer comes down by the Supreme Court, which issues a decision we call the milligan decision. It is a decision we know about as a sort of triumph of Civil Liberties because it says that civilians cannot be tried by military tribunals or courts if there are civilian courts operative in that area. That is the milligan principal. The real story of milligan is this, that the case in point has to do with an indiana man named milligan being tried. The Supreme Court is under tremendous pressure to issue a decision. If they rule what i just said, which is ultimately what they do, what it means is that the whole structure of the law and the south is gone because the way that law is actually orchestrated in the south is through military court. Military courts are the ones upholding the rights of africanamericans. If you cannot try civilians, which are these people who are abusing civil rights, a military court, you undermine the whole Justice System that stanton and others are trying to oppose. At the chief justice position, who is on the side of africanamerican rights, the court says something they have never done before or since, and announcing that decision of milligan without an opinion. It doesnt say why for almost a year. This allows the army to continue to operate in the south, which is what stanton wants. Then in early 1867, finally the court issues its opinion, which basically says those military courts have no authority. What this means is that Southern Police can now arrest not only do they have the power and the army theoretically has none they can start arresting people in u. S. Uniform and imprisoning them, and that is exactly what they do. They start imprisoning in local prisons people in uniform, including a lot of black troops. So stands and is up there in the War Department saying, what do we do . Hes got no tools at his disposal to keep the army in place. Hes issued general skewed the army in place, but the milligan decision clearly undermines this. Eventually without the reconstruction act of 1867. That is down the road. What he does is goes back to the Civil Rights Act and creates an order which he once Andrew Johnson to sign which will still allow the army to have authority. He takes from the Civil Rights Act of 1866 a piece about using the army preemptively. He crosses off [indiscernible] [laughter] this is the draft of an order which says, here is the authority to do it. The authority is in the Civil Rights Act. The order basically says the army still gets to continue to have this power which Congress Gave it in the Civil Rights Act. So he drafts it. That needs the secretary of war was ready to use the Civil Rights Act of 19 to six of 1966 1866 in a creative way against conspiracy. This never came to be because by the time anything like this could have happened, johnson and stanton broke publicly, then came the firing and the impeachment, and became unnecessary because of the reconstruction act of 18 to the seven of 1867, were congress not only imposes military districts, but effectively takes control of the army and under guess the commanderinchief role of the president. Therefore they dont need to worry as much about the president as they did before. So that is a different kind of look at the Civil Rights Act of 1866 as a military measure. It is then of course the 14th the moment, which has its own enforcement clause, and i would argue that because it was passed during a time of war it is not ratified until the end of the official war, if you count that johnson proclamation because of all this you should never draw the line between the war and reconstruction, which always worth mention which already was mentioned, and the war continues after appomattox, so there is overlap, nor should you ever think that the army stopped having power once reconstruction began. The army was a crucial power during reconstruction. One is to make good on the promise of military reconstruction, which is to use the army. Enlarge the army, impose it on the south, and stick it there. As part of the army, you keep enlisted africanamericans. That wasnt hard because they were the last people to be mustered out from the civil war era army. That would have helped. Was the will their . Of course not. But thinking about this in a military way, the application of force to achieve ones ends, and this case to sustain the promise not only of reconstruction, the promise of the civil war, of emancipation. So this is an act not only about civil rights, the Civil Rights Act, the 14th amendment, it is an act of war. The context of war was surely is important as any other context. It is a military measure that leads us to a greater appreciation of its significance. This was no mere parchment promise of equal rights. It was a declaration of continued war, he vowed to use every weapon in the u. S. Arsenal and i mean arsenal to protect the countrys most honorable people. Most vulnerable people. Thank you. [applause] i have taken up all of my time. The next thing on the agenda is a break, but i am happy to answer questions if you would like. If you want to ask me afterwards, that is fine, too. Your thoughts about the military role. In 1870, congress under grants created a department of justice. Have you looked at the role the federal prosecutors, people like ackerman who became the attorney general, how they worked with the military . Prof. Vorenberg i havent looked at that in terms of archival. And havent had to do too much of that because greg downs has done a lot of that. Other people have, too. Their working handinhand with the army, the department of justice. It continues. We tend to forget the department of justice, which is the ironies here are so heavy. [laughter] why was the department of justice created . It didnt exist before the reconstruction era. It was created specifically for this reason, to enforce civil rights for all, but obviously with africanamericans, for most in mind with africanamericans foremost in mind. And working in tandem with the War Department. I dont know as many details as perhaps you know, but they are working handinhand. That said, the department of justice is accommodated thing. There are some leaguer is a complicated thing. There are some legal scholars who say that it is kind of a sellout because they were streamlining the Justice System in a way to actually undercut more radical proposals to really be even more interventionist in the south. Once you have the department of justice, you can sort of delegate everything to them and say it is their problem, and you dont have to act so aggressively against all the stuff that is happening. I want to get too much of that argument come i just want to say it is out there. I do think it is crucial for any student of reconstruction to know where the department of justice came from, especially today. Any other questions . So Justice Thomas on the Current Court believes strongly that long, sold jurisprudential o ought to be revisited in the original extent. There are those who dont agree, who look at the Civil Rights Act and see a major disruption of the enforcement and intent of the civil rights amendments. If one were to undo the Civil Rights Act cases, you would have some comments on a vision of a greater role for the federal government if that were to happen . Prof. Vorenberg yes. First of all, im not a lawyer. Im no good at playing one. I cant pretend to be a legal scholar. But this sort of sorry to put it this way a goofiness of talking about original intent if you are a historian and original jurisprudence. We are very interested in a regionalism, but what in original i in our originalism. I regard with suspicion anyone who talks about original intent as the guiding policy or the courts should do. Thomas and scalia before him articulated a certain vision, but they are socalled neooriginalists. There are those on the other side of the spectrum who talk about using in line with what you are talking about lets use that to push the federal government towards a stronger role, which after all, the 14th of and that was about. Im quite sympathetic to that view. That comes from my political views much more than my views of a historian. That said, i will go ahead and say yes. Heres the problem. If you take my argument and turn it into policy, what i am saying is that the army and navy, under the commanderinchief, who is the president , should be empowered to use these devices for the basis of civil rights. By the way, this doesnt go away. Those clauses and up in the acts that establish and perpetuate the National Guard. If you are wondering what gives eisenhower the power to send in the National Guard to arkansas before any violence had occurred just because he suspects, quite rightly, that there could be trouble, it is these clauses. So it is still there. We dont hear about the National Guard going into places like this anymore. We hear about the National Guard going and when there is an emergency. But we but we are in an emergency situation right now in terms of civil rights, i would argue. It could not be a worse moment of when nothing would be done because of the current president and attorney general. I could say would be a good thing, but it is not going to happen. The other problem is that there is this act and principal which says that the u. S. Army is not supposed to be used against states. That law is used against an argument like mine. I can win that argument. [laughter] i will get into how. Theres a lot of precedent. If you have the right president the right army and navy, dealing with the right secretary of war and attorney general, then you revisit these things, and absolutely you can and i would argue you are obliged to use the army in this way. I will say one last thing. It was soon after becoming president that President Trump said somebody about chicago, a city he knows nothing about, and said, maybe i will send the army to chicago because there are such problems there. He was projecting this image of inner cities, that they are driven by violence of africanamericans committing violence within the africanamerican community. One could say, is that what im talking about . No. No, no, no. The spirit of this says you send in the army when you have civil rights abuses done by the local legal authorities. We have obvious evidence of that. Racial profiling, all these commissions studying how Police Forces are working. If we have evidence of dysfunction at the local level and the inability of local Police Forces to police correctly and enforce civil rights and we now have 20 of evidence that youve got more than enough justification plenty of evidence youve got more than enough justification to override that authority on behalf of civil rights. That is when you send in the army. Lets stop there. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2017] interested in American History tv western mark visit our website. You can view our tv schedule and preview up coming programs and enjoy College Lectures and more. American history tv at. Ww. Cspan. Org history an author talks about her book about liberal and conservative factions in the Womens Movement from the 1970s to the present day. Place in new york city. The New York Historical society and the reading room cohosted the event. My pleasure to introduce our speaker, an authority on the womens rights movement. She is the professor of history at the university of South Carolina and the author of new women of the new south