Episode 9: Eric Foner, The Second Founding

Join Professor Jeffrey Sachs and Pulitzer Prize–winning historian Eric Foner, as they discuss Foner's latest novel, The Second Founding: How the Civil War and Reconstruction Remade the Constitution.

Together, they discuss this transformative era in American history, and how the 13th, 14th, and 15th amendments remain strong tools for achieving the American ideal of equality, if only we will take them up.

The Book Club with Jeffrey Sachs is brought to you by the SDG Academy, the flagship education initiative of the UN Sustainable Development Solutions Network. Learn more and get involved at bookclubwithjeffreysachs.org.

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Jeffrey Sachs 00:03

Hello, I'm Jeffrey Sachs. Welcome to Book Club, a monthly conversation with world-leading authors who have written scintillating, inspiring, and remarkably important books about history, social justices, and the challenges of building a decent world.

Jeffrey Sachs 00:19

In this episode, I will be speaking with Professor Eric Foner, the author of numerous award-winning books on the Civil War and the Reconstruction period, including The Fiery Trial: Abraham Lincoln and American Slavery, winner of the Pulitzer Prize. And he will be joining me today to discuss his latest book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution. In the Second Founding, Professor Foner recounts the history of the 13th, 14th, and 15th Amendments of the Constitution, three foundational Reconstruction-era amendments necessary for achieving the American ideal of equality. Professor Foner describes in vivid and dramatic detail, the historic and continuing struggles to interpret these Constitutional amendments, struggles that last to present day America.

Jeffrey Sachs 01:14

So Eric, thank you so much for being with me in this discussion. Could I ask you a general open question: What is the second founding?

Eric Foner 01:23

Thank you very much. The Second Founding, the title, is meant to sort of juxtapose the three Constitutional amendments that were adopted right after the Civil War during the Reconstruction period–the 13th 14th, and 15th–which we will go into in more detail. Juxtapose that with what we call the founding, the Founding Fathers, the writing of the Constitution in the late 1780s, the establishment of a national government after independence. And why did we need a second founding? Well, the fundamental reason is the Civil War, which up-ended the regime which had existed since the adoption of the Constitution.

Eric Foner 02:04

And we needed to come to terms with the consequences of the Civil War, the most important of which were the preservation of the national state, and the destruction of the institution of slavery.

Eric Foner 02:17

The original Constitution had at least, one might say, recognized and protected the existence of slavery in the United States. The word slavery doesn't appear in the original Constitution, but through circumlocutions, such as "three-fifths of other persons," or "persons held to labor," terms like that, the institution received significant protection in the Constitution. With the destruction of slavery, all that was gone. To use a modern term, which perhaps is a little out of style, right this minute, what we're seeing here is "regime change," that is to say, the transformation of a pro-slavery regime, which was created as a result of the American Revolution, into one that not only was based on the end of slavery, but on an attempt to create genuine equality into racial equality in this country for the first time.

Eric Foner 03:14

So one of the main points of my book is the Constitution we live with today is the Constitution of the Second Founding. It's not the original Constitution. The second founding fundamentally transformed our constitutional system, our legal system, our political system. These amendments were not just minor changes in an existing structure. But the problem is that most people probably wouldn't realize that. The framers of the original Constitution are widely known and respected: James Madison; Alexander Hamilton, of course, he got a boost from a Broadway musical; George Washington, of course, who presided over the Constitutional Convention. The architects of the amendments of Reconstruction are hardly household names: James Astley, Henry Wilson, John Bingham, particularly with the 14th amendment. Most people don't know who they are, and yet they are just as essential to our Constitutional order as the founders right after the Revolution.

Jeffrey Sachs 04:16

So Eric, maybe your next work will be a good musical with a good rap between Thaddeus Stevens and Charles Sumner.

Jeffrey Sachs 04:25

I think that would be great. I haven't had a call yet to take part in that, but I'm ready anytime.

Jeffrey Sachs 04:31

What's fascinating, and what comes through very clearly: we know that the Civil War reshaped both the laws, culture, about race in the US, but also what the book makes very clear, is that the Civil War fundamentally reshaped the relative roles of the federal government and the state governments, which was also a hugely complex part of the birth of the United States, how to put together 13 distinct, culturally different colonies into one country. What's the balance between a federal government and state government? We'll go into that. But you describe how much the issues of states' rights versus federal rights predominate, and we're still debating that question, actually, literally in these days.

Jeffrey Sachs 05:21

But I wanted to ask you Eric, before we get to the amendments themselves, America was founded on a verbal sleight of hand that also reflects a profound complexity and ambivalence. The founding credo is that "all men are created equal and endowed by their Creator with certain unalienable rights, among these are life, liberty and the pursuit of happiness." And yet, this was a slave country, for much of the country, and that remained central to the economy of the whole nation, and to, certainly, everything about politics and the social structure up to and then after the Civil War, and arguably until today. Could you just say–you've been thinking about this for decades and writing great books about this–how were these two views held in the mind of American political leaders from the Founding Fathers onward? Because at the one moment that they would say all men are created equal, they were slaveholders themselves. So can you say something about the mindset? Is that an easy answer, or is that a complicated answer? Or is that cognitive dissonance, because it is a kind of amazing feature of the country.

Jeffrey Sachs 06:39

Yeah, well, you of course, you're right. I mean, it was a real ambivalence, in that many, not all, of course, but many of the people who made the American Revolution and who made the Constitution understood that slavery stood in contradiction to the ideals that were being put forward, particularly in the Declaration of Independence. Some states took action during the Revolution to put slavery on what Lincoln would later call the "road to ultimate extinction." Pennsylvania passed a gradual emancipation law in 1780; Massachusetts, it was even quicker that court judgments just basically outlawed slavery. But on the other hand, every one of the 13 states had slavery when the Revolution began. Some of them moved in the next 15, 20 years to abolish slavery.

Eric Foner 07:19

But the places where slavery were most deeply embedded in the economy, the plantation states, from Maryland southward down to Georgia, they had no interest in getting rid of slavery, and indeed, as you said, slavery was the foundation of their economy. And I think people like, let us take Alexander Hamilton, who spoke against slavery on occasion, that was not a main priority to him. His priority was nation building, and he understood right away, if you directly attack slavery, you would never get a unified nation. This had happened at the time of the Declaration of Independence. Jefferson had included a condemnation of slavery in the original draft, although it was a little dishonest because he blamed George III for slavery, not the colonists themselves. But nonetheless. But South Carolina and Georgia said, forget it, we're not signing on to anything which includes a condemnation of slavery.

Eric Foner 08:23

So then you had to choose: do we stick with our principles, or do we try to create a unified nation? They always chose the latter. In other words, anti-slavery was not their number one priority, even for those who criticized slavery. There were other priorities which took precedence. And that's why you get a Constitution, which doesn't mention slavery, but certainly has deep protections for slavery. And indeed, through the three-fifths clause gives the South far greater political power than it should have had, by counting three-fifths of the slave population when apportioning members of Congress electoral votes, etc. And you know, from the Revolution to the Civil War, just about every president was a slave owner. Not every single one, but almost every single one. Those were the people who were running the country.

Eric Foner 09:16

So whatever the intellectual contradiction, slavery expanded. It was thriving. It was the source of much of American economic growth in the first half of the 19th century. And to get rid of it became more and more impossible, basically, it became more and more entrenched. Some of the founders thought slavery might die out. It wasn't dying out. It was stronger. In 1860 there were more slaves in the United States than at any other point in our history. It was growing, it was not dying out, and sad to say, I'm not a violent person: no one has ever suggested to me a plausible way of getting rid of slavery without war.

Jeffrey Sachs 10:00

I was going to ask you about that: the US, I don't know if it's fair to say or right to say the US is the only country that had to have a brutal civil war to end slavery.

Eric Foner 10:10

I wouldn't say that. It's never peaceful. Different kinds of war, different kinds of conflicts. The wars of the Latin American liberation in the first part of the 19th century led directly to the end of slavery in many parts of Latin America. The Cuban war for independence in the 1870-80s led to the end of slavery in Cuba. In other words, yes, the United States had a bigger war, other than Haiti, where you had a slave insurrection, but that's because slavery in the United States was far bigger than anywhere else. You know, there were about 6 million slaves in the Western Hemisphere in 1860. 4 million of them were in the United States. Slavery in the United States dwarfed that in any other–indeed, you have to go back to ancient Rome to find a slave system, as gigantic and important as the American slave system leading up to the Civil War.

Jeffrey Sachs 11:06

So I always wondered, Britain ended slavery in the British Empire in 1833, I think or 1884. Also, to my amazement, the Czar Alexander II liberated the serfs at the same time as the US Civil War. Both peacefully, but, just not as entrenched? I mean, in Russia, it is actually pretty surprising that he pulled that off.

Jeffrey Sachs 11:31

Well, liberating the serfs wasn't quite the same thing as freeing slaves. They remained in many ways tied to the land and connected to their former owners. I'm not trying to denigrate that; that was a tremendous step forward for Russia. The British abolition, of course, applied to the British Empire. In other words, slavery was not embedded in the society of England. There were many people there who profited from slavery, of course, but you didn't have–freeing the slaves in the British West Indies did not mean you were creating a large new class of former slaves, as happened in the United States, and what was going to be the status of those people? That was the key question that came out of the Civil War, and that the Second Founding tries to address. What about these 4 million slaves? Are they citizens? Are they gonna have the same rights as the other Americans? What about the legacy of slavery? How can the country deal with that? Those problems didn't quite arise in the same way in Britain, or these other imperial countries where slavery was out in the colonies, not in the homeland.

Jeffrey Sachs 12:42

And it is fair to say that during the Civil War itself, these issues were not in the forefront in the sense that, well, even the idea of whether this was a war that would end slavery was far from clear during much of the war itself.

Jeffrey Sachs 12:57

It became clearer and clearer as the war went on. Of course, as everybody knows, when the war began, Lincoln said, this war is to preserve the Union, it is not to attack slavery. At the very, very beginning, many Union generals would send fugitive slaves back to their owners if they ran away to seek freedom with the Union Army. But that quickly stopped. Even though it was not the official stance of the government to abolish slavery, slavery began to weaken almost from the beginning of the war, and the Lincoln administration began taking steps slowly, small scale, then bigger. And then by 1862, Congress abolished slavery in the District of Columbia, abolished slavery in the territories quickly, in the Confiscation Acts, freed slaves of Confederate owners who were behind Union lines, and things like that. So the attack on slavery begins, maybe a little earlier than a lot of historians have suggested. But the main point really is that the slaves themselves took the initiative. Thousands ran away to Union lines. They stopped acting as if they were slaves. They understood that the presence of the Union Army completely changed the balance of power in their neighborhoods in the South. And they, in a sense, the running away of slaves, forced the issue onto the national agenda as the Civil War went on.

Jeffrey Sachs 14:27

And indeed, running away to the Union lines and then to enlist and to fight incredibly valiantly in the Civil War itself.

Jeffrey Sachs 14:35

Yeah, well, Lincoln in the Emancipation Proclamation, Lincoln authorized the enrollment of African American men, former slaves, as combat soldiers. They had worked earlier as transportation people in the army, as quartermaster, or even digging, you know, fortifications and all this, but now they were going to be combat soldiers, which was an astonishing thing, given how big slavery was, and how frightened owners were of the prospect or the specter of a slave insurrection, to arm former slaves to fight their former owners. Karl Marx, who was living in London at this time, and writing for the New York Tribune, he said with the Emancipation Proclamation,

Jeffrey Sachs 15:23

a good Stringer, huh?

Eric Foner 15:24

Yeah. He said, "Up to now we have had the constitutional waging of war. Now we are embarking on the revolutionary waging of war." Slavery a target, black men armed, a completely different situation than at the beginning of the war.

Jeffrey Sachs 15:41

So that brings us to the founding of the second founding. And I'd like everybody to understand these three amendments, because they're not a logical package that they're just laid before the nation. Okay, now, here's what we do. They are a remarkable, remarkable political battle and improvisation, negotiation. Can you take us through the 13th, 14th, and 15th amendments?

Eric Foner 16:09

Well, the 13th Amendment seems to be the most straightforward, that slavery can–this abolishes slavery irrevocably through the entire country. The Emancipation Proclamation had freed many slaves, but there were many slaves who were not covered by it, for one reason or another. The 13th amendment is the final nail in the coffin of slavery.

Eric Foner 16:33

And as an economist, you'll understand, you know, you don't think of it this way. But among other things, it is the uncompensated abrogation of the largest concentration of property in the country. Slaves as property were worth more than all the banks, factories, and railroads put together. And that property is just abrogated. There was never going to be any compensation for the loss of that property. That doesn't happen in history very often, actually.

Eric Foner 17:04

But the 13th Amendment raised big questions, which it didn't answer. Most importantly, what does it mean to actually abolish slavery? Does that mean that black people will now no longer have all the restrictions that existed under slavery? For example, it was illegal for a slave to learn before the Civil War, right? You couldn't, they couldn't be taught to read and write. Well, does the abolition of slavery therefore mean the government has an obligation to provide education to them as part of the abolition of slavery? And questions like that. Slavery, as one congressman said, was the sum of all inequities. Every posit, every right was violated by slavery. Did the abolition of slavery therefore mean that all those rights, the right to vote, the right to hold office, the right to have economic advancement, were now guaranteed by the government? Well, of course, there was tremendous disagreement about that.

Eric Foner 18:08

So really, the question is what does it mean to be a free American in the aftermath of the Civil War? So the 13th Amendment abolishes slavery, but it raises all these other questions. And as you suggested, this becomes the focus of a really titanic struggle between the President, Andrew Johnson, who succeeded Lincoln after Lincoln's assassination–he had been the vice president–who was a deeply racist Southerner who really had no interest in protecting the rights of the former slaves at all. And a gigantic contest between him and the members of Congress, the Republicans control Congress. Very quickly, they realized Johnson's plan of Reconstruction was to put blacks pretty close back to a status of slavery almost.

Eric Foner 18:57

And out of that, in 1866, comes the 14th Amendment, which, in a sense, tries to answer the question. Okay, what are the rights now that every American is supposed to have, not just the former slaves? 14th amendment doesn't say anything about race. It's race-, neutral. But of course, the former slaves are the ones on their mind, but it applies to all Americans, not just black Americans.

Jeffrey Sachs 19:22

And what's fascinating in your discussion is the realization that the question of what it means to be an American citizen was never sorted out in the period from the Constitution up through...I guess a fundamental point is that citizenship up until this moment was at most about citizenship in states, not a national citizen, not a citizen of the United States, in some sense.

Jeffrey Sachs 19:50

Yeah, that's quite right, of course. Citizenship was determined by the individual states. There was a general assumption that if you are born in the United States, you're a citizen, if you're white. The Supreme Court in the Dred Scott decision right before the Civil War said, well, black people can never be citizens. Doesn't matter if they were born free, if they've been here, their parents, their families for generations. Citizenship is for white Americans only. And that's, you know, one of the indications of how slavery sort of warped the whole understanding of American nationality. "This is a country for white men," was a very popular political slogan at that time.

Eric Foner 20:30

14th amendment begins with the words basically, anybody born in the United States is a citizen. It sweeps away the Dred Scott decision. This is what we call birthright citizenship. And of course, it's still hotly controversial today.

Eric Foner 20:45

Then it goes on to say that no state can deny to any citizen the privileges and immunities of citizenship, but it doen't say what those are. That's for future Congresses. But now, all these citizens are supposed to have the same privileges and immunities. And then, this is all the first section, and then it goes on to say, here are at least a few of the rights: no person–not just citizen, person, anybody in the country, aliens included–can be denied by a state the equal protection of the law. Equal protection. That puts the concept of equality into the Constitution for the first time. The Declaration of Independence and said all men are created equal, but the Constitution didn't use the word equal or equality, except in a sort of technical thing about what happens if two candidates get the same number of electoral votes. But the idea that the Constitution protects equality among American citizens didn't exist before the Civil War.

Eric Foner 21:50

It did exist among the abolitionist movement. What you're seeing here is ideals that have been put forward by anti-slavery activists before the war and by African Americans themselves. Birthright citizenship, equality before the law, all those things which didn't exist before the Civil War, now are put into the Constitution.

Eric Foner 22:12

Let me very quickly add that the 14th Amendment is like the gift that keeps on giving. It's always relevant. Citizenship, we're debating that today. Right to vote, it sort of contains a complicated compromise, not giving black men the right to vote, but penalizing states that don't give black men the right to vote. Section two. And by the way, this has never been enforced, and in my opinion, should be enforced. If a state denies to any group of men, and today it would be anybody, because women now have the right to vote, if a state denies that any citizen the right to vote, that state will lose some of its representation in Congress. So for example, let's say Alabama was 50% black, 50% white at the time of Reconstruction. If Alabama gave black men the right to vote, no problem. They'd have the same number of congressmen as always. If they said no, only white men can vote, then they lose half their congressmen because blacks are half. Now this has never been enforced. Right now, states are, as we all know, trying to deny people the right to vote, trying to limit the right to vote. Shouldn't Texas lose a couple of congressmen if the number of people disenfranchised by their new laws, gets up to a certain proportion? As I say, Congress has never enforced it. The courts have never enforced it, but it's out there and might not be a bad idea to look at it again.

Jeffrey Sachs 23:45

I hope some lawyers are listening in. This sounds like a good, good opportunity.

Jeffrey Sachs 23:50

Pelosi, let's hope the Speaker of the House is listening. And then you go to the third section of the 14th amendment, and that also has relevance. Anybody who took an oath to support the Constitution, and then basically engaged in insurrection or gave aid to insurrection, is forever barred from office, for holding office.

Jeffrey Sachs 24:14

You can think of a few candidates for that. Right?

Jeffrey Sachs 24:17

Well, I wrote an op ed about this. A few did, back in January. We had a president who certainly took an oath to support the Constitution. And then, at the end of his term, encouraged insurrection, let us say. Shouldn't he be disqualified from holding office? That's different; that's not impeachment. This is a different mode in the Constitution. Mostly, at that time, it was to prevent ex-Confederate leaders from getting back into political power.

Eric Foner 24:48

And then there's the fourth section. You might find this interesting. No jurisprudence on this, but it's also sitting here. It deals with a bunch of economic issues. For example, there'll never be compensation for the loss of slaves. Southerners who bought Confederate bonds, who loaned money to the Confederate government in a patriotic gesture, will never get their money back. Those bonds are no longer valid. And it's strange wording, the national debt of the United States cannot be questioned. What about right now? They are debating whether to raise the debt limit, the possibility of the government defaulting–

[Audio clip: President Joseph R. Biden] 25:33

Hello, folks, I want to thank our participants that are here, as well as those on Zoom. And this is, to state the obvious, an important get together here. And I'm going to make some brief comments, maybe ask a few questions. And then we'll yield and go down the road here. And maybe we can all of us, both virtually, as well as in person here, we can hopefully make some progress.

[Audio clip: President Joseph R. Biden] 26:06

I want to thank the Secretary of Treasury, Secretary Yellen, Commerce Secretary Mondo, I see her on the screen there. It's good to see you. And the leaders of some of America's most important businesses and institutions. The American Association of Retired Persons, AARP; Bank of America; CitiBank; Deloitte; Intel; JP Morgan; NASDAQ, the National Association of Realtors; and Raytheon, for joining me today to talk about the need to raise the debt limit. We haven't failed to do that since our inception as a country, we need to act. These leaders know the need to act. The United States pays its bills. It's who we are, it's who we've been, it's who we're going to continue to be, God willing. That's what's called the full faith and credit of the United States. Let me be clear: raising the debt limit is paying our old debts. It has nothing to do with new spending and what may be coming this year or other years. It has nothing to do with my plans on infrastructure, of building back better, both of which are paid for, but they're not even in the queue right now. It's about paying for what we owe, and preventing a catastrophic event occurring in our economy. I'm glad these leaders are here to talk about the real world impact this is going to have on people and on our position in the world. Today's discussion won't be partisan, it shouldn't be; raising the debt limit is usually bipartisan.

Jeffrey Sachs 27:39

President Biden could just raise the debt limit by himself, in my opinion. The Constitution says you cannot have a default on the bonds of the United States. Pelosi, where are you? You've got to remember this.

Eric Foner 27:54

Then the fifth section finally says that Congress will have the power to enforce this–not the states, not the courts–Congress will have...in fact, all three amendments end with that clause. Congress will have the power to enforce it. And this goes back to your point, Jeff, about federalism. This is a tremendous increase in the power of the federal government, as opposed to the states. The original Bill of Rights was based on limiting the federal government. Congress shall make no law abridging the freedom of speech. That's the first amendment. Now, it's the states that are prohibited from violating the rights of citizens, and Congress shall have the power to enforce the 13th, 14th, and 15th amendments. So it's a fundamental change in the federal system. And a lot of people don't, in this world of jurisprudence, of courts, don't quite realize that. When they try, if you look at Supreme Court decisions, when they talk about federalism, they go back to the original Constitution. States rights, all that; they do not talk about how the Constitution changed–

Jeffrey Sachs 28:26

Was refounded.

Eric Foner 29:12

Yeah, was refounded. And the whole balance of power within it was shifted by the 13th, 14th, and 15th amendments.

Jeffrey Sachs 29:20

Which made sense after having had a civil war, after all, where states had seceded. So let's quickly move to, maybe the most contentious of all of them, the 15th amendment.

Eric Foner 29:35

Yeah. Well, that comes down to the right to vote. The 14th amendment didn't give anybody the right to vote, although it had a penalty to states that denied any group of men the right to vote. Voting has always been under the control of the states in this country. And it still is in many ways. We do not have a national set of criteria for voting. We have 50 different laws and regulations. You can move from one state to another and lose your right to vote, just because you've gone to another state. What we have in the Constitution is barring certain ways of limiting the right to vote. So 15th Amendment says, "No state can deny to anybody the right to vote because of race. It doesn't say who has the right to vote, ut it says you can't deny them the right to vote because of race.

Eric Foner 30:33

But you can deny them the right to vote on other grounds without violating, and in fact, you know, that's what happened. In the late 19th century, when the southern states began to take away the right to vote from African American men, they didn't do it by passing a law say, hey, black people can no longer vote, because that would violate the 15th amendment. They did it through poll taxes, they did it through understanding clauses, they did it through literacy tests. Ostensibly non-racial, well this applies to everyone, but in fact, of course, the way they were implemented was completely biased.

Jeffrey Sachs 31:12

And, Eric, you make the point very vividly, as you're making it right now, that there were actually two versions of the 15th amendment proposed. One said, you cannot bar voting on the basis of race, and the other saying, we must have voting on the following criteria, all adult males and so forth. And the positive variant was put aside. So we never defined what was the right to vote, just what could not be done, ostensibly.

Eric Foner 31:42

Yeah, the Radical Republicans wanted a positive statement. Now again, unfortunately, at this time, hardly any members of Congress wanted to give women the right to vote. So all of these proposals are for men, to the great annoyance and alarm of the women's suffrage movement at this time, which protested bitterly that black men were getting the right to vote, but women–black and white–were being denied. So the radicals wanted a positive statement. All adult male citizens have the right to vote. That would have solved a lot of problems going forward. But the problem is northern states wanted to keep control of the right to vote for themselves. My colleague, May Nai has just published an excellent book about the prejudices against the Chinese on the west coast in this period. California, in fact, refused to ratify the 15th amendment because they were afraid it would give Chinese men the right to vote, which had been barred in California. Rhode Island had a separate qualification for voting for immigrants, as opposed to native born citizens. They didn't want to give that up. So this notion of states' rights, of state control over voting requirements, doomed the positive 15th amendment and still is out there today, as we see state after state are passing their own laws limiting the right to vote, and claiming that they're not racially biased.

Eric Foner 33:15

Now, of course, laws and amendments, the courts have sometimes ruled that these things actually are intended to stop minorities from voting. But in fact, all the Constitution says about voting is you can't do this, you can't deny it now, because of sex as well as race. You can't require a poll tax. But that doesn't positively say what other qualifications are legitimate in regulating the right to vote.

Jeffrey Sachs 33:43

I was gonna say that this is an incredible drama, and beautifully told, and really fascinating to watch these amendments, work their way through, and also to remind everybody, in the US system, you need two-thirds vote in each of the houses of Congress, and then you need three-fourths of the states to ratify. So it's a very complex process with profound politics at every stage. But these three great amendments are passed. And then this story turns dark again, turns sour, and you describe vividly, from the optic of the courts, how these amendments are then interpreted. And one can talk about the reality on the ground, as well, after the end of the federal occupation of the southern states in 1877 and the building of the new Apartheid or Jim Crow societies, especially in the US South, but with plenty of racism of all kinds to go around in the United States after that. Can you give us a big picture briefly? It's, of course, a huge story of the next 100 years of America, but this edifice is then profoundly undermined, maligned, limited, narrowed, worked around, in very deep ways.

Jeffrey Sachs 35:10

Yes, sadly, that is correct. We shouldn't forget, though, that because of these amendments, a period of genuine interracial democracy took place in the South and in the whole nation, Radical Reconstruction or whatever you call it, where, for the first time in American history, this is in the late 1860s, and into the 1870s, black men in large numbers voted for the first time, held office. Hundreds, if not a few thousand, black men were now part of the body politic. And it really changed Southern life temporarily. But the fact is, as you say that over time–

Jeffrey Sachs 35:46

And created some wonderful reforms, like the first school systems in the Southern states, which is amazing.

Jeffrey Sachs 35:51

For the first time, you had state supporting public school systems in just about all the Southern states. But as the phrase goes, the Constitution is what the Supreme Court says it is. And all these amendments left open points of interpretation. As I said before, what comes along with the abolition of slavery? The court said, not much. The 13th Amendment, its purpose was fulfilled when it was ratified. No more slavery. That's it. We don't want to hear about any other rights coming out of this, etc.

Eric Foner 36:25

What about the 14th amendment? What are the privileges and immunities of citizens? Courts said, slaughterhouse case, there really aren't very many. Just about all your rights come from the States, not the federal government. The 14th amendment didn't really change that.

Eric Foner 36:41

What about equal protection of the law? That doesn't define itself, someone has to–Well, of course, by the end of the 19th century, state-mandated racial segregation was viewed by the Supreme Court as not a violation of equal protection, as long as these facilities, institutions were separate, but equal. Of course, they never were equal. But the court sort of turned a blind eye to that.

Eric Foner 37:07

So you know, one can go down all of these ambiguous statements that cried out for interpretation, and see how the court always basically adopted a narrow, very narrow view of them.

Eric Foner 37:23

Finally, the 15th Amendment. As I said, by the end of the 19th century, Southern states had pretty much abrogated the right to vote for black men. The Supreme Court said, well, one of the, Giles V. Harris, one of their worst decisions, basically, they said, you know, if the white people of Alabama want to disenfranchise all the black people, there is nothing we can do about it. They just threw up their hands. The Constitution simply cannot be enforced in the South and it took a long, long time.

Jeffrey Sachs 37:55

A stunning thing that the court just said, Well, that's the way it is.

Jeffrey Sachs 38:00

It was even worse, in a way, because they said, it's for the people of Alabama to decide these matters. But half of the people of Alabama had been eliminated from the discussion. That was the whole point of the debate was, who are the people of Alabama? Is it just the white people? Or is it everybody? And the court just threw that, didn't even notice that that was a part of the–they were accepting the idea that it's the white people who determine these things, not the whole population of Alabama.

Eric Foner 38:32

And then one other very important question, which is relevant. All these things are relevant today. The 14th Amendment says no state can deny you this, that, or the other thing. What about private individuals? Does the federal government–What about mobs, Klansmen, lynchers? Can the federal government go after them? Well, the court eventually said no, because this is what they call the state action doctrine. That it only bars official acts by the State governments or public officials that are discriminatory, not individuals, even if they commit murder and things like that. That's not a federal offense. In other words, you create, it's another weird thing, you create this edifice of constitutional rights. And then you step back and say, well, if violent individuals make it impossible for people to exercise these rights, there's nothing the federal government can do about that. That's a very strange kind of constitutional right that can be taken away from you by another citizen with a gun, you know.

Jeffrey Sachs 39:35

It is stunning. And I want to turn to this point that the backdrop to all of this was the tremendous amount of racism at the core of American culture or large parts of American culture. So whether it's the Supreme Court saying we can't do anything about it, or indeed the southern states finding their ways around all of this, in the end the racism, not the slavery returning, but the racism proved to absolutely be able to shape the real life, the real politics and the real economics. But interestingly, also it shaped academia. And you discuss this, and it's a stunning thing. But I'd like to talk about how this whole period was understood by one of your famous predecessors at Columbia University, William Dunning. And if I am correct in understanding this, the Dunning school or the Dunning interpretation of the Reconstruction period, when there was the period of multiracial, open democracy, was to say, what a horrible experience that was for America. Thank God, we went back to a white-led society. And that became the historiography, for at least the first half of the 20th century.

Jeffrey Sachs 40:54

Yeah, sadly, that is, of course, correct. The Dunning school in a nutshell, just said, Look, giving black men the right to vote was the worst decision in the history of American democracy. Black people are just inherently incapable of taking part intelligently in democratic politics. And therefore, the ones, the Klansmen and others who eventually overthrew these democratic governments by violence; they were doing the right thing. In other words, it was completely rejected as a model, the notion of interracial political democracy. And that view dominated for a long, long time. These books were written in the early 20th century. But way down into the 1950s, this was the dominant view among academic scholars, as you say, as well as the large part of the general public interested in history.

Eric Foner 41:44

And this had a powerful political effect. It's not just an academic debate over interpretation of this or that; the message was clear. The white South had the right to deny black people the right to vote. And if the rest of the country kind of forced them to make good on the idea of democracy, you'd have a replay of the so-called "horrors of reconstruction." So this academic interpretation was part of the intellectual legitimacy of the Jim Crow system as it existed in the South, for a good chunk of the 20th century. And it was adopted by the courts. Into the 1950s and 60s, court decisions about the amendments would often cite the works of the Dunning school, in order to suggest what was going on in Reconstruction as late as 2004. That's not that long ago. Chief Justice Rehnquist published a book about the election of 1876, the disputed election, which ended Reconstruction. In the course of that book, he sort of said, you know, reconstruction was a disaster. It was a Carthaginian peace, that is the North imposing its will on the South, running amok, destroying things. And if you have that attitude, that that's what was going on in Reconstruction, you're not going to have a very expansive view of what the Reconstruction amendments were meant to achieve.

Jeffrey Sachs 43:13

When we went into lockdown, and suddenly, there was a bit more time for reading, one of the first things that I read was Dubois' Black Reconstruction. Oh, my God. It was one of the most moving experiences of my intellectual life, I would say, but am I right: it was this great historian, I think the first African American to get a PhD in Harvard history department, but he almost single-handedly, because he was the only one, took on this dominant historiography. And this 1935 book is unbelievably brilliant, captivating.

Jeffrey Sachs 43:57

It's a great book. Yeah, you're completely right about that. It's a great book. And it did completely dismantle the old Dunning school mythologies. But unfortunately, it had little impact in the mainstream universities. It was fairly widely read, actually, in the 30s when it was published. And it certainly was read in the black colleges, but it didn't affect how Reconstruction was taught in most of the major universities in the country. That wouldn't come until the 1960s. It was the Civil Rights revolution, sometimes called the Second Reconstruction, which not only dismantled, finally, the Jim Crow system, but also said that a historical interpretation based on overt racism is no longer tenable nowadays. Reconstruction was completely reinterpreted starting in the 1960s. And it's going on today, there's good work being done on Reconstruction. And so Dubois, yes, led the way, but it wasn't until a generation later that that perspective that he was putting forward, which saw Reconstruction as a major moment in the history of American democracy, and the tragedy being not that it was attempted, but that it had failed, now that is widely believed in the academic world. But it took quite a long time for people to catch up with DuBois.

Jeffrey Sachs 45:23

One of the fascinating things I think about academia and about history is the question who gets to write it? When Dubois wrote, he was a lone voice, an incredibly brilliant voice. And one of the wonderful things about history today is that it's being written by people who, a generation ago, wouldn't have had the standing to write, wouldn't have been allowed to write, so to speak, whether it's women or Native Americans or African Americans or other minorities. And it seems incredibly enriching and fascinating to have the story told in a different way, by those who suffered and never had the right to express this alternative point of view.

Jeffrey Sachs 46:11

You're completely right. And we shouldn't though, ignore the black colleges. Up until the 60s, when integration took place, and I'm not just talking about the South–Columbia University had no black students virtually until the mid to late 1960s–and barely any black faculty. I was an undergraduate and graduate student at Columbia; I never had a black teacher in any course. I never had a woman teacher in a history course in my whole life. The cast of characters of the profession, the demography of the profession, has changed enormously. Not that all those people agree with each other. There's the usual academic disagreement and changing of ideas. But it's a much more diverse group of people who are trying to come to terms with American history. And as you know, that's also controversial.

Jeffrey Sachs 46:59

It seems to me that this is the essence of this fight over 1619 and critical race theory and all the rest is, ultimately, the opponents of it, like Mitch McConnell and others, who say, why are you stirring all of this up? It's really not about the substance. It's about who do you think you are to tell this story? We already told that story.

[Audio clip: Mitch McConnell] 47:24

Later today, the Senate will vote on the nomination of Kiran Ahuja, President Biden's choice to serve as head of the Office of Personnel Management. This is the position responsible for making hiring, payroll, and training decisions that affect literally millions of federal employees. The President's nominee has made statements expressing sympathy for the discredited, ahistorical claims about our nation's origins that formed the backbone of so-called Critical Race Theory. One major organization of federal employees expressed its concern about the nominee's capacity for "neutrality, fairness, and impartiality." I share those concerns and I'll be voting against this nomination. Still elsewhere in the Biden administration, efforts to subvert that basic understanding of our founding principles are already well underway. The Department of Education's latest proposed priorities run roughshod over existing history and civics programs, established with bipartisan support in order to push Critical Race Theory on public school students and keep pace with woke sensibilities. American students deserve a rock solid civics education, grounded in actual facts, not divisive propaganda that tells them they're a little more than a product of their racial background. That's the basis of new legislation I was proud to help introduce this week. Schools that choose to trade-in fact-based curricula for activists propaganda, like the 1619 project, forfeit their right to receive federal education grant funding for those teachings. So Mr. President, the current administration came to power on a promise to unify a divided nation. It will be judged closely and carefully on how that power is used.

Jeffrey Sachs 49:24

Yeah, I don't think we want Mitch McConnell determining what is taught in every classroom in the country. I agree with you. I think that the redefinition of American history in a more critical direction has alarmed a lot of people who want a patriotic, uplifting history. They want a history where things begin perfect, and then they get better and better, you know. There's problems with the 1619 project just like any other thing produced by human beings, but I think much of what's in there by historians is now pretty much what most historians think. I mean, there's not that many surprises in there to historians. To the general public, which hasn't been following changes in historical interpretation, there may be some who find this project difficult to swallow, so to speak. But now we're at the point where states, as you know, are passing laws outlawing the teaching of racism in the classroom. We may be heading back to the Scopes Trial of the 1920s. Then it was evolution which was banned; we may see a teacher thrown in jail for mentioning the history of American racism. That's what the laws that have been passed in several states seem to suggest and that doesn't seem to be a very healthy thing for a thriving historical consciousness.

Jeffrey Sachs 50:44

But when one reads all of your great books, Eric, it it does seem that this is one of the fundamental truths of the United States. We are always at culture war, if not at hot war. We're always heatedly debating because diversity is extraordinarily hard to manage.

Jeffrey Sachs 51:03

It is, and the ideals which are at the root of the American founding, perhaps, at least part of it, of equality, of liberty, etc, are always up for grabs. They're not defined in any highly clear way. They are always contested. And groups and individuals are always seeking more equality and more liberty. And so these debates are endless, and they should be endless, because we're not–even though the second founding was a tremendous turning point in our political legal system–we're not locked into the world of the 1860s, you know. We have to apply those ideals to today.

Jeffrey Sachs 51:46

Eric, this is absolutely phenomenal work. So important, so well told, and so fascinating. Let me encourage everybody to read The Second Founding. Thank you for being with us for such a fantastic discussion, for being here today.

Jeffrey Sachs 52:05

And thank you for having me, Jeff.

Jeffrey Sachs 52:07

Wonderful. Thanks a lot.

Jeffrey Sachs 52:12

Next time I'll be speaking with Professor Corey Robin, distinguished Professor of Political Science at Brooklyn College and the CUNY Graduate Center, and acclaimed and highly perceptive observer of the contemporary political and cultural scene. Professor Robin will be discussing his book The Reactionary Mind: Conservatism from Edmund Burke to Donald Trump, in which Professor Robin describes how conservatism is a reactionary force against movements of the progressive left, whether the French Revolution, feminism, or progressive economic politics today. Together, we will discuss the roots of conservatism and what drives the political right in today's political landscape.

Jeffrey Sachs 52:58

Thank you for joining in the conversation. Please, subscribe, rate, and write a review on whatever platform you listen for your podcast. I would love to hear your thoughts as we continue to develop the series.

Book Club with Jeffrey Sachs

Episode 9: Eric Foner, The Second Founding

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