America chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis. I cannot imagine a more inspiring for film and of our inspiring fulfillment of our congressional charter than the program we are about to share with you today. With our great partners at the federal Judicial Center led by judge jeremy fogel we have assembled some of the greatest federal judges in the country for two days of discussion and conversation about the historic and contemporary meaning of the reconstruction amendment. The reconstruction amendments are the amendments that were passed after the civil war to end slavery and guarantee equal rights. We have assembled the greatest historians in the country to talk about their historic and contemporary meaning. This symposium is bipartisan and assembles people of different perspectives for conversation and debate about the meaning of this text which unites us. This is the central purpose of the National Constitution center. We recently launched exciting interactive constitution which we believe is the best on the web in partnership with the Federalist Society and American Constitution Society and we are asking top scholars in america from different perspectives to write about every describing what they agree and disagree about. The College Board decided to make this the centerpiece of the new ap exams. This model, which we are doing online and in debates across the country and in symposia like this is based on our belief that when people of different perspectives come together to discuss the constitution, genuine illumination can result. We have it an important topic this morning. The judicial legacy of the reconstruction amendments. We have three of the greatest scholars in america to really dig into the question of what the framers originally understood those amends to mean. The question is hotly contested. A lot of history to run through and i want to have you here the scholars. I will introduce them. Pamela brandwein, a professor at the university of michigan. John harrison, is James Madison distinguished professor of law at university virginia. John was here last year for a phenomenal seminar on the judicial and historic legacy of madison. He is one of the country possibly leading authorities on the original understanding of the privileges or immunities clause which he has written about at length and with great elimination. The great jack rakove. Professor of history and political science. He is the author of many important books including the book original meanings, which won the Pulitzer Prize for history in 1997. We will jump into it. John, your article on the privileges and immunities clause taught me much of what i know about it many years ago when i jumped into this field. Tell us let me frame it this way. My colleague, mike gerhard, said there are four ways the originals understood the reconstruction amendments. That it incorporated the entire bill of rights, second that it was a guarantee of the qualities so that the federal government could not discriminate against citizens of other states, third that it was a guarantee of certain fundamental rights like the ones set out. I guess i have forgotten the fourth one. [laughter] give us a sense of which of those ideas you embrace and also, to finish the question, you have written that privileges or immunities clause was understood not to civil rights as opposed to clinical and social rights. On that first point, the substantive scope, there is substantial historical evidence that the drafters of the 14 amendment, the evidence is always unclear. The drafters of the 14 amendment regarded the immunities clause and not the protection clause the primary means through which they come to their princely quality goal. Their principal equality goal was to put into the constitution the statute they adjusted in 1866 which forbade race discrimination with respect to a list of basic rights one needs to punch in and society especially Holding Property and making contracts. The language of privilege and immunities came from article for of the constitution article four the constitution. Peugeot framers put it in their. Article four guarantees that a citizen of virginia comes to pennsylvania come of that citizen enjoys the same basic rights of ordinary life, property and contract in particular, that a pennsylvanian does. In particular, somebody who does that can not enjoy Political Rights or it the distinction between civil and Political Rights, wellestablished, reasonably wellestablished that was associated with the phrase privileges or immunities. A particular body of rights listed in the Civil Rights Act of 1856, which carefully did not establish equality with respect to Political Rights because doing that was much more controversial than doing so with respect to things like property, contract, being able to pass property in a will. That is the idea of the categorical limitations of the 14th amendment. As one of the concepts that dropped out. This conference is in part about the judicial legacy. That idea of categorical limitation soon dropped out in the way the court the courts came to approach the 14th amendment. By the end of the 19th century they seem the courts seem to think there was equality provision with respect to always someone is treated by the government but there are strong evidence that the framers of the 14th amendment did not think it that way. In particular, did not want the 14th amendment in section two to deal with Political Rights because that was so controversial. They did not get to that until the 15th amendment. Thank you for that set up. I was so excited i did not begin by reading the texts. You can read on the National Constitution center. This thrilling and insightful introduction by me and David Rubenstein about the relationship between the declaration, the constitution come and the bill of rights. You can go online to constitution center. Com and read John Harrison and vicki lamarr and aquila lamarr debating. I have to find it and i have to be able to read it as well. Im not going to read the whole thing. Lets start with section one. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States nor shall any state to pride any person of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the law. We know that second sentence includes three clauses known as the privileges or immunities clause, due process clause, and equal protection clause. John jumped in by making a strong claim so we have to unpack it. He says the privileges or immunity is clause, which was considered the heart of the original 14th amendment, which originally was originally intended to apply only to civil rights. Do you agree and what is the implication of that today . I think in terms of the congressional debate, in 1866 when the congressman were thinking about the fact we had the black codes after the 13th amendment was passed, the 13th amendment abolished slavery and involuntary servitude. Quite a bit of evidence that the republicans, both centrists and radical republicans, understood the 13th amendment to buy its own force protect core civil rights. Suing, testifying, equal redress for injuries. This was the division between free labor and slave labor. When we look at the ideologies of the republican party, that was the division between slavery and freedom. What happened after the 13th amendment was that the Southern States past the black codes, laws that denied to africanamericans all of these rights. The republicans in Congress Senate this is a violation of the 13th amendment. We need to pass additional legislation. They passed the Civil Rights Act of 1866. One of the things they intended to do with the act of 1866 was to protect these core rights of free labor which go under the heading of civil rights. There is strong consensus among republicans in congress on the civil rights. In terms of captured under privileges in immunities of equal protection, it is impossible to know that when we are only looking at debates over the act of 1866. These precede the formulation of the 14th amendment by about 14 months. What we can ascertain from debates is that they tended to use both terms. They talked about privileges, immunities, equal benefit of the law. In their language at the time, they merged these two concepts. The thing that i would want to add in a preliminary way is that then need to distinguish between radical and centrist republicans is vital. One of the things that continues to happen in reconstruction in the literature on reconstruction is that folks are fine northern democrats who opposed reconstruction done the line and then they talk about radical reconstruction. Either radical reconstruction or the northern democrats. That, historically, is a mistake. We need to distinguish between centrists and radicals because the action in terms of how to understand these debates is really in the disagreements and the agreements between centrist and radical republicans. Two brief examples about the divergence. Its republicans who held balance of power, this idea that radicals were in charge, is really a distortion centrists were in charge. They had a narrower definition to civil rights. Civil rights were seen as the rights that defined the division between free labor and slave labor. Centrist republicans limited that definition in 1876 in 1856 1866. Radical republicans included the right to vote and things like access to public accommodations. Centrists have a more narrow definition of civil rights. In the other dimension on which these groups diverged was federalism. Whereas both groups agreed that the federal government had the power to protect these rights, centrists insisted that states had to deny rights first before the federal government could come in and protect rights. That form of denial included the failure to administer the law equally. This is an expansive understanding of state denial of rights, not the traditional conception of state action we have. Radicals, for their part, thought the federal government could come in immediately and protect rights regardless of states denial of state rights. These dimensions were already being argued, debated in 1866. In all of these debates, the terms equal benefit of the laws, equal protection, and immunities, are run together constantly. I would offer that. That is fascinating. You have helped us understand that the question of what was a civil right varied. The radical republicans would included things like the right to vote in the definition of civil rights itself. There is consensus that in the act of 1866 it did not touch the right to vote nor access to public accommodations. People were aware of these things at the time. It is a mistake to say that the act of 1866 not contemplate access to equal schools or public accommodations. It was understood at the time that the line between free labor and slave labor was defined by those rights that the act of 1866 protected. We know that the 1856 act and for many, the 14th amendment, did not include the right to vote because section two said that if Southern States chose to deny the right to vote to africanamericans, the basis for apportionment should be correspondingly reduced suggesting they were contemplating some in state might deny the right to vote. An indirect way to protect black Voting Rights. The act of 1867 extended to africanamerican males in the south the right to vote. I want to really dig into the slaughterhouse cases which interpreted the amendment in illuminating ways. As you listen to this discussion, jack, youre one of the leading writers and skeptics of originalism. It sounds like the Supreme Court may, as Justin Harlin said, have been violating the clear original understanding of the 14th amendment. Should we be troubled by that . I would not be personally. [laughter] the outcome is fine with me. How much value can we ascribe to divisional understanding . Should we all be originalists when it comes to making sense of the 14th amendment . I do not know if i have a dog in that fight. What is interesting to me about the process is to try to think about the questions. If you want to get asked what did section one of the 14th amendment or the amendment as a whole originally mean, how would you do it, how you think about it, how coherent and analysis could you produce. I think the best approach is something very much like what our colleague bill nelson from nyu does. Bill makes an interesting argument. A number of interesting arguments. One i think is for the benefit of the judges presence. To think that the original intent will give you some binding set of procedures that will discipline your judicial spending, that may be tends to be openended. A variety of positions. A range of opinions on the republican side. Toss in the democrats as well. The idea of action trying to come up with one definitive reading of any particular part of it, that will be really tough. Judges will probably find themselves unlikely to be able to formulate with as much decision as we may want. When i think about the larger process, the important distinction to make, one has to think about the 14th amendment as a whole as well as really having to dimensions really having two dimensions. There is no alternative to thinking of the 14th amendment as law itself and to do the best job available using whatever techniques you prefer to use to figure out both what does it seem to maine then and what what did it seem to mean then and what does it mean today . They have to make that kind of decision. In doing that i think it important to recognize the process of framing the 14th amendment always had a dual dimension. A political and legal text. One has to work as hard as possible to sort out immunities, which rights were excluded. When the 39th congress, after the original intent to draft the amendment comes back to it, they had multiple voters they had to respond to. To develop serious Constitutional Authority for the Civil Rights Act of 1866 and presumably other legislative acts that would come along to clarify whatever ambiguity there was at the end of the war. They were also going to the polls. The 14th amendment was framed in part with the Congressional Elections of 1866 in mind. It was meant to go to the public. They will be able to sustain whatever course reconstruction took. In that sense, a second critical aspect of thinking about the amendment is to say for those purposes you might only need a certain level of generality. You would not have to sort out the exact meaning in approach to immunities. It is enough to have the general principle out there. Nelsons argument over and over again. A very focused argument that the best way to understand the privilege of immunities is to put their versus baltimore, the 1833 case in which the Marshall Court said the court text, the bill of rights, did not apply to the state. It pretty strong case to show that leading members of Republican Coalition were very contrary and. An important consequence to the whole process to correct that error. At the same time, i think nelson makes a powerful case that all the themes of antebellum constitutional and political discourse they survived in the congressional debates. They do not have to be resolved because they are a bunch of congressman. They want to endorse a set of general principles. Declaratory rights i think is an important concept. To juxtapose a set of legal obligations remember that congress may not have been fully concerned with working out what all the legal invocations would have been. You told us that in addition to disagreement with the scope, there was disagreement of the process. The fact that the Southern States where forced to ratify a gunpoint. I want to put slaughterhouse on the table in a moment. Just a brief comment. In terms of the original understanding of the 14th amendment, even if we take that on its face, contract rights did not apply to women equally. We can put voting to the side and say, even if the 14th amendment protected contract rights, women did not have equal contract rights under the original provision. For folks who feel obligated for whatever reason to stick to that original vision they would have to confront that aspect. That is something that is generally not considered. Slaughterhouse, decided in 1873. Perhaps the most criticized case after dred scott when it comes to the 14th amendment. Scholars from Supreme Court justices like Clarence Thomas have said everyone agrees slaughterhouse was wrong when it construed the clause so narrowly. Justice field in his dissent, if this was the case in the amendment was an idol enactment. What the various positions of the dissenters were about the scope of the privileges and immunities clause. Tell us about justice field, who seemed to see it as a guarantee of equality of fundamental rights, and Justice Bradley who said there were certain fun of the rights including those declared in the declaration of independence. Help us understand the range of positions about why slaughterhouse was wrong. One reason slaughterhouse, from the early 1870s is a good case to talk about the difference between the 14th amendment and the privileges and immunities clause as being an equality requirement for a freestanding substantive guarantee of certain rights without respect to just discrimination. Slaughterhouse itself was about a monopoly in the operation of slaughterhouses in new orleans created by the government. A monopoly is intrinsically unequal. It singles out some people as having certain rights. Here, the right to run a business, the kind of her ordinary the kind of ordinary legal entitlement covered by privileges or immunities. It was possible to criticize the monopoly on grounds that it discriminated against the monopolist and everybody else and on the ground that you have a right to be a butcher or run a slaughterhouse. As jeff suggested, the majority of the Supreme Court disposed of the problem by taking an extremely important step in interpreting the privileges or immunities clause saying it protects only the rights of distinctively national citizenship. This, at a time when the structure of enumerated powers in the federal system meant matters like property and contract were dealt with by state law and not federal law. Federal law was more limited. Like the post office and navigable rivers. The right to national citizenship, a very limited category of legal protections. The majority said natural rights only. This is about running a business, being a butcher, a matter of state rights, not covered by the privileges or immunities clause at all. The dissenting justices rejected that idea. Among themselves bided as to whether to say no state shall abridge privileges or immunities meant there are what we would think of as fundamental rights like the first amendments freespeech right, that are guaranteed in the same way in every state. Or the view of the justice field probably raise both of them. The one justice field pointed to , justice field noted part of the constitution, article four, designed to prevent both of those ideas of substantive protection, both of those to get to that you had to get past the first step, is this only rights of national citizenship. Let me add to covering basically the change in the court asked doctorate dr. And, hence including the right to vote, i think the slaughterhouse cases were an important step in that direction by accident. The justices wanted to limit the scope of the privileges or immunities clause, probably to limit the power of congress. They then had to go somewhere else to find what they knew was in there. The requirement that forbade the black codes. They went to the protection clause that requires they expanded the retention clause and cut themselves loose from the text. Put themselves in a position the process by which they came to deposition which is essentially accidental. I want our audience to understand what would happen lets imagine the Supreme Court overturned the slaughterhouse cases and was free to construe the privileges and immunities clause. We have talked about a variety of ways of identifying which rights are protected by the clause. The rights to engage in ordinary occupations of life and prohibition against monopolies. Maybe it is licensed to identify new rights. The final thing ill say is, professor Michael Mcconnell has suggested the framers had an intermediate saw privileges and immunities as rights that were uniform from state to state available as a matter of right and not privilege. If slaughterhouse were overturned, how could and should a judge decide which rights are privileges or unitys . Or immunities . I think it would take your question in a particular sense. What i would like to address first is how much doctrine and how much leeway remained for the court even with slaughterhouse. There is this idea that slaughterhouse gutted quite a bit of congressional power to enforce the reconstruction amendments. I want to indicate, slaughterhouse left intact quite a lot. It left intact and understanding of the 14th amendment as including state neglect as a form of state action. Justice miller in his opinion explictly said the states, the Southern States have not been reconstructed and the lives of black men were at the murder of were at the mercy of whites because laws were not being in force. Justice miller alludes to it. Justice bradley is responsible for articulating in his cruickshank circuit opinion which folks had not to read. Very elaborate doctrine on rights protection where he now only articulates this notion of state neglect, he lays out a 15th amendment jurisprudence. The court at the time is not much hampered by the fact that the 14th amendment did not include voting because the judges turned to the 15th amendment. Bradley articulated a nontextual reading of the 15th amendment where he excludes that amendment from state action doctrine. That is the doctrine along with the federal elections law bradley also articulates. The Justice Department starting in 1877 after that disputed election, they take bradleys cue and Voting Rights go up in enforcement goes up in the 1840s. Klansmen go to jail under these cases. Under the 15th amendment. These are Voting Rights prosecutions. I want to underscore folks at the time were not worried about did not protect Voting Rights because Justice Bradley of all people hands the court, the Justice Department a robust 15th amendment jurisprudence. An historian has written the trial of democracy where he gives us the numbers of federal prosecutions under the 15th amendment under the state action doctrine. They would have been impossible. Just to underscore the history of the interpretation of privileges and immunities, it is not nearly as devastating for the protection of black rights during reconstruction as is conventionally imagine. What would have happened if privileges and immunities had not been overturned or had not been gutted one more footnote. Michael ross has written a biography of justice miller. He suggested the court gutted privileges and immunities because the moderates were worried about the libertarians like field and they were worried justice field would turn to the due process clause to invalidate the regulations of business. Justice miller and the members of the majority wanted to sustain regulations of business and they were quite worried field were seizing on those due process clause to do that. It was a defensive measure to block field. That did not mean they were hostile to reconstruction in general. We can look at subsequent developments and support of michael rosss hypothesis. The one thing that would have happened, the state action requirement would have been part of this. It would not have Given Congress or the federal government the power to come in and regulate anything they wanted regardless of state behavior. That state requirement would have been there. Any interest of time, i will stop there to preserve more time for the panel. John, i think you have something to disprove. Two things i wanted to say. Getting down into the legal weeds. In the weeds, it is important if the premise is excepted that state neglect can violate the reconstruction amendments, there is an important follow exactly what congress can do about that through its enforcement powers. In particular, whether in response to that Problem Congress can then act affirmatively to secure individual rights or whether the way congress has to deal with that problem is to act on the State Government to make them do what they are supposed to do. There is a dispute about that one. That second question. It is important to see that as a distinct question from, can state neglect there seems to be consensus that the federal government could not force state officials to act in any particular way. You see quite a bit of conversation among Congressional Republicans saying, as it is the case that we cannot force state officials to do anything, the federal government must come in and act directly on perpetrators. They are clear that acting directly on the perpetrators is predicated on states not punishing the perpetrators. Now we are in the weeds, which is great. [indiscernible] jack, lets pull it back for a second. We are going to go to the beautiful forest and look at the lush greenery before us. And ask this question for our judges and our cspan audience. One thing i hear, as i listen to this discussion judges matter. , they matter a lot. Had slaughterhouse cases come out another way, had judges not interpreted the 15th amendment to allow the federal government to punish private individuals who created racebased violence more of that might have gone unpunished. What is your evaluation of how judges performed during this crucial postreconstruction period . Were they faithful to the best ideas of the reconstruction you amendments or did they force them . Did they thwart them . I dont think there can be a simple answer to that kind of question. I am mostly in 18thcentury guy. Im taking a long view of this. Part of my understanding of slaughterhouse is it represented an early effort on the part of the court, and im probably overgeneralizing here, an effort to realize that you that if you had a broad , reading of privileges and immunities, it would be enormous. It is trying to control the body, the amount of controversy available, a narrow reading would make a certain kind of administrative sense. What happens is they dont what happens in courtrooms is what happens is courtrooms dont constrain lawyers or litigants from trying to take as much legal advantages they can of whatever legal opportunities available. It may well be that privileges and immunities was effectively closed off. Certainly sharply curtailed. That option was available from the very beginning. The court seems to close that off and takes a long time for the incorporation doctrine of the 14th amendment to work its way into american jurisprudence. The conservative litigants to arise litigants continue s to arise. I know in the recent case of privileges and immunities there is a lot of interest in the second amendment. It is something ive written about with the idea of revising or overturning slaughterhouse to open up the possibility of even more Judicial Intervention in terms of enlarging the scope of what the right to bear arms. Might mean. I think if you are a historian like myself and not trained as a lawyer trying to understand the system from without, lot one what one appreciates is the amount of ingenuity that can go into legal practice. The ingenuity of judges. There is always an array of legal arguments that the ingenious judge can pick up on. I look at shelby county, a decision i hardly supported. The court can always develop a new theory or take an existing body of doctrine, develop a new twist on it to really enlarge the realm of jurisprudence. If you are not in the weeds, just trying to admire admire and make sense of how the system works from the outside that is one of the most interesting things about our jurisprudence. There are strong arguments on both sides of the debate and a lot of discretion for judges. It is time for closing arguments. We spend the next few days engaging in this question of what the original understanding was and what the contemporary application was. We have one question to the audience. The question is should we draw , any meaning from privileges and immunities listed before due process and equal protection . The question im going to ask each of you, lets get the twominute version. What the privileges or immunities clause was originally intended to achieve in your view. I dont think it matters it comes first but it matters that it is there. I think its primary point was the requirement of general equality among citizens with respect to basic rights of citizenship. I think it is possible that i am never sure it was designed to apply what we call the bill of rights to the state. On even numbered days i do. That is a close case. I think its primary point was equality in the sense of all citizens having the same civil rights with respect to that important category of civil rights. Beautiful. Pamela, does it matter that villages and immunities came first . I think it matters that the citizenship clause came first. Used to formally overturn dread scott in that basic way. I think privileges and immunities covers the original corporation the original incorporation of the bill of rights. It also covers equality in core civil rights. I do not think the fact that equal protection and due process comes last suggests lesser status. I dont think the sequence matters. I think the three clauses would have been regarded as being complementary to each other implying a sequential order. I do think historically its interesting to think how privileges and immunities is closed off. Due process becomes the next wave of the enforcement of the 14th amendment. But there is the sequential aspect to the history of how the clause is applied which makes it interesting for undergraduates if not for the judges one way to conceive what is going on in the 14th amendment. They also overlap. They are not mutually exclusive. You can see how incredibly rich and important this is and how much there is to learn. I want all of us over the next couple days to go learn more about this subject. Go to the constitution center. Org. Read more deeply, make up your own minds about this crucial project. The National Constitution center in partnership with the Constitutional Accountability Center is launching a fiveyear initiative to celebrate the 150th anniversary of the reconstruction amendments. On december 7 at the National Archives we celebrate the 100 anniversary of the ratification of the 13th amendment and that will continue over the next five years. It is going to be an amazing period of education, debate, and learning. We will reconvene in 15 minutes for our next panel. Join me in thanking our great panelists. [applause] as mark monday is Martin Luther king jr. Day. We have featured programs on all three cspan networks. Him the weekend prior to the caucuses there will be a frenzy of activity across iowa. There are so many candidates on the republican side. Have sixof them will events per day. Those eventsg at that give you a sense of what it is like to campaign for the caucuses. Keep in mind what is key to this organization. Interesting tobe see how the candidates are trying to close the deal, sell their message, and convince people who might will be on the fence. You will essentially see walltowall coverage on cspan as candidates make their final pitches. Live coverage of the president ial candidates in iowa. Each week, wrote the white house rewind brings archival coverage of president ial races. At theekend it is a look 2004 campaign. You guys already have the picture here. To say im sure there are some disappointed people here. You know something . Us one year ago we would come in third at iowa we would give anything for that. Not only are we going to new hampshire, we are going to South Carolina and oklahoma and north dakota and new mexico. California and texas and new york. We are going to washington and michigan. And then we are going to washington dc to take back the white house. We will not give up. Not give up in new hampshire, we will not give up in South Carolina, we will not give up in arizona, new mexico, oklahoma, north dakota, delaware, pennsylvania, ohio, michigan. We will not quit now or ever. Our country back for ordinary americans. And we are going to win in massachusetts and north carolina, and missouri, and arkansas, and connecticut, and new york, and ohio. See the entire Program Sunday at 10 a. M. Eastern. Sunday night on cue and day, author Scott Christian should provides his thoughts on the documents that had the greatest impact on the world, from the magna carta and declaration of independence to Martin Luther king juniors i have a dream speech. Criticism, a lot of but there is also a strong feeling that he is an american hero. He is viewed as such around the world. Questionause people to who controls documents, who owns documents. What are these things really about . Sunday night on cspans q and a. The cspan buses in iowa ahead of mondays caucuses to spread the word about cspan. Sewing tweet showing some of our resources on the ground. Democratic president ial candidate Martin Omalley stopped by and met College Students who tweeted this. And professorss hang out in the cspan bus wall Martin Omalley is interviewed. Marco rubio supporters tweeted this, hello from iowa state university, chatting with marco rubio supporters here. Traveling with the cspan bus. January 28 marks the 30th anniversary of the space settle spatial challenger accident. Up next on history bookshelf, for astronaut discusses his book recounting his experience four of those killed were in the challenger explosion. Good evening. I would like to welcome our friends on booktv who will be filming tonights discussion. We look forward to hearing any questions you have from mike tonight. We want fewer booktv viewers to hear your questions is also. Please wait for the microphone to come to you before asking