Reconstruction, Incorporation, and the Bill of Rights Featuring Kermit Roosevelt

Reconstruction, Incorporation, and the Bill of Rights Featuring Kermit Roosevelt

Join Kermit Roosevelt of the University of Pennsylvania Penn Carey Law School for a conversation about the Bill of Rights through the lens of Reconstruction. We’ll take a closer look at why the framers thought a Bill of Rights was necessary, the rights included, and how the Bill of Rights has changed over time—specifically during the time period of Reconstruction.

Kermit Roosevelt is the David Berger Professor for the Administration of Justice at the University of Pennsylvania Carey Law School, where he teaches constitutional law, conflict of laws, and creative writing. He is the Reporter for the Third Restatement of Conflict of Laws. Before joining the Penn faculty, he clerked for D.C. Circuit Judge Stephen F. Williams and U.S. Supreme Court Justice David Souter. In addition to law review articles and scholarly books, he is the author of two novels, Allegiance and In the Shadow of the Law. His most recent book, The Nation that Never Was, reinterprets American history in an effort to tell a story of America that is both accurate and inspiring.

Register for upcoming programs:

Visit our media library to discover more online classes, podcasts, and Town Hall conversations:

Subscribe to the National Constitution Center on YouTube:

Follow the National Constitution Center on social media!


Sign up for our newsletter:—7rRBAsT4f5B7IV2UbsNZFPIVvYFY1ZtLK4zENNfTuda3Z_WJBoefPS8mnvM8KMyfAOq4%3D

Third I love it that one often gets Overlooked Matt I love it that’s a very Good one It looks like our panelists are getting Set up now we’ve probably got a few Maybe one more minute until we get Started the first or the night we’re Gonna get started Um sorry Brian hi everybody how are you Doing today well Good okay yes there’s Cajon response Here and you all nice to have you join Us as well if you want to move up you Can but you can also stay in the back Row too any of you guys can join as well My name is curry sotner I’m the chief Learning officer here at the national Constitution Center really excited to be Here today we’re happy to have you all In this exhibit this is the Reconstruction exhibit at the national Constitution Center and it looks closely At the 13th 14th and 15th amendment We’re also excited to have all of our Online students with us today in class So really fun we’re mixing all the Worlds together but I get to do this With a great friend of the Constitution Center Kermit Roosevelt so can we all Since we’re in person give Kermit a real Round of Applause And not a weird virtual one like we’re Used to like Um thank you

So Kermit Roosevelt Um is a constitutional lawyer he teaches All about Khan law to at University of Pennsylvania at the Cary school of law But he’s also an amazing expert on the Bill of Rights and the Reconstruction Time periods so do you guys know what Day it is what special day it is today You don’t know What is the grouping of amendments that Most people talk about all the time the Bill of Rights guess what day it is it’s Bill of Rights day today so this is the Day that many of the first 10 amendments Were ratified into the Constitution it’s A big day but what we’re going to find Out today is they don’t have the impact That we think they did until a little Bit later during Reconstruction so let’s Get us started kick us off people online If you have questions feel free to send Them into the chat my team is going to Text them to me so when we get towards The ends we’ll ask questions and for you All if you have questions towards the End you get to just ask them out loud Directly to Professor Roosevelt so it’s Fantastic so thank you so much for being Here Thank you for having me happy to be here So tell us about the Bill of Rights Let’s why did you know This ratified a Bill of Rights is so Afterwards can you

Be about why we needed a Bill of Rights And what was the kind of intent and Purpose of those first 10 amendments Yeah so why is the Bill of Rights added So quickly how does that happen it Happens because it’s under contemplation Even during the debates about Ratification so a lot of people want a Bill of Rights Some states actually when they ratify The Constitution they try to make their Ratifications conditional on the Addition of a Bill of Rights which may Be as effective maybe not but in any Case people think we need this and they Kind of expect that they’re going to get It so why do they think that they need It because what the Constitution is Doing Is creating a much more powerful federal Government So before The Constitution we had the Articles of Confederation and the National government there was very weak It couldn’t do very much there was a Congress but there was no president There was no courts turned out it Couldn’t make the states cooperate the Way it needed to so we’re going to make A stronger national government that’s What the Constitution is doing but this Worries people because they’re thinking About The last war so sometimes I say

Constitution drafters fight the last war People are thinking about the Revolution And why did we have the revolution Because the national government was too Powerful and it was oppressive that was The British government and so in the Minds of the drafters of the Constitution they’re thinking if the National government is too strong it Might oppress people and states can help So states can help defend the Liberties Of their citizens that’s sort of what Happened during the revolution when the State militias fight off the Redcoats And there are structural things that We’re doing with the Constitution to try To make the federal government less Dangerous to Liberty So we give it limited and enumerated Powers it can’t do just anything it Wants to do and we separate those Powers Among the three branches of government And they’re supposed to check each other And all of this is supposed to protect Individual liberty but it’s not enough People are still worried that the National government might become a Tyrant so the Bill of Rights responds to That in two ways One of which we think about one of which We’ve sort of Forgotten one thing it Does is it gives individuals rights Which is what we think about now Individual liberties things the

Government can’t do to you the other Thing it does is it strengthens the States because the states are viewed as These trusted Defenders of Liberty I think it’s so important the way you Kind of like laid that out so the Constitution 1787 it’s brought in it’s a Reaction in some ways to an oppressive Government so you’re going to naturally Swing and maybe too far with the Articles of Confederation to you know no Power in that national government so We’re always trying to like with Everything in life kind of balancing Things and the idea is that the Bill of Rights is there to ensure that the People through representation of the State are not stepped upon is that Correct Yeah So the the idea is we need to protect People from the federal government and One way we do that is limiting Federal Power another way we do that is Individual rights and another way we do That is empowering the states So in a couple of instances there are Bill of Rights Provisions that really Are designed to let the states stand up To the federal government It’s kind of fascinating because when we Think about the Bill of Rights at least When I think about the Bill of Rights Today I really think about it as oh it’s

About me me a person and what the Government state government local Government or national government really Can’t do to me but then it’s really About the states supporting you and Representing you but that’s not really The case like the states aren’t really Let’s be honest so the Bill of Rights is Launched it’s out there it’s ratified it Are the states really protecting all the People in their state Well no so the states certainly aren’t Protecting all of the people in their State Um they’re not protecting certain Classes of people very well in terms of Political rights if you don’t own Property and you’re not a white male you Don’t have a lot of political rights if You’re a woman you have very uh very Fewer rights and of course there are People who are being enslaved so there Are Provisions in the Bill of Rights That protect individuals against the Federal government but there’s very Little protection against the states and This is sort of interesting maybe this Is a moment to give my puzzle so I don’t Know how legally educated people in the Audience are but if I ask you for a Bill Of Rights case like name a case about Free speech And I’m not really going to ask you uh Because I don’t know if it would work

With this audience but I asked my law Students this who come into class with You know some sort of background legal Understanding and they’ll say something Like hey New York Times against Sullivan That’s a famous First Amendment case It’s about criticizing the government or Maybe the students are familiar with the Cursing cheerleader the recent case About the cursing cheerleader on Snapchat there’s a First Amendment case Or if I’m like a fifth amendment case The right to remain silent most people Will come up with like Miranda against Arizona your Miranda Rights and then I Ask them for all these cases and then I Say wrong wrong wrong wrong wrong wrong Because none of those is a Bill of Rights case none of those is from the First 10 amendments they’re all from the 14th Amendment We we all knew those cases by the way Just kidding Um I appreciate that you start off class By saying no no no no no no They’re really building up their uh Positivity there Um I think this is really powerful Because when we that you said earlier That the states are stepping on the Rights of the individual and then also That you the Bill of Rights in this idea Of what we think it is today really

Doesn’t take hold until the 14th Amendment is written and what year is The 14th Amendment written into the Constitution 1868 I told you I’d ask you Easy questions Um it’s a really powerful Amendment That’s almost 100 years later so for a Hundred years we’re not are we really at All tapping into the Bill of Rights in Any way Not really for for a couple of reasons So one is the things that people said About limited Federal power and division Separation power among the branches was Sort of true People didn’t have that much interaction With the federal government much less Than they have nowadays So the federal government didn’t have a Lot of opportunity to violate people’s Rights it just didn’t happen that much So the Bill of Rights wasn’t as Significant most of your interactions Are with your state government which can Violate your rights but the Bill of Rights doesn’t protect you and there is An early case about that Baron against Baltimore where the Supreme Court says What seems pretty clearly correct The Bill of Rights is about the federal Government and not the states so it’s Really focusing on the federal Government when you look at the words And you read them again the First

Amendment Congress shall make no You’re not saying the state governments They’re saying Congress that’s the Federal government is not a right a law That takes away your freedom of speech Or freedom of religion so are there States that violate people’s freedom of Religion or choose one religion over Another yes so that’s a really Interesting point about the First Amendment and The Establishment Clause When The Establishment Clause is written There are plenty of states with official Religions which we would Now call Establishments and does The Establishment Clause Um strike them down certainly not Actually what the establishment Applause Does is it protects them so the free Exercise clause is written clearly as an Individual right so Congress can’t Restrict your free exercise of religion And that’s it right that you have as an Individual but The Establishment Clause Says Congress shall make no law Respecting an establishment of religion And one thing that means is there can’t Be a federal establishment Congress Can’t say this is our national religion But the other thing it means at the Founding is Congress can’t interfere With state established religions So the point of that again is we’re Preserving State Authority so that the

States can protect the liberty of their Citizens Um which of course they’re not doing for Everyone Fantastic so another question that I Have for you and sorry this is going a Little kind of existential in a way when I go big picture on this one because We’re in the Reconstruction exhibit Looking at that time period between you Know at the end of the Civil War or at The end of the Civil War the 13th 14th And 15th amendment and you can give us a Kind of ballpark of those dates on that But one of the questions that I have for You is you know when we teach about American history when we teach about the Constitution and we’re telling stories About it so often a lot of our stories Start with Madison they start with Bill Of Rights they don’t always lead with The Reconstruction time period and you Just told us this 14th Amendment is Really what makes that you know original Bill of Rights so powerful So What story Do you lead with when you’re teaching About American history and the rights of Individuals what’s your kind of what was Your go-to story what’s the story you Think we should be really learning in Classrooms across the country today well Well so chronologically I think you do Start with 1776 and I do that I start With the Declaration of Independence

And then you talk about the original Constitution but what I try to do is I Try to show people how the Constitution You get in 1787 or 1791 and Even the Declaration of Independence as It’s understood in 1776 are very Different from the way that we Understand them now So we’ve got a constitutional system now Where the federal government has a lot Of power and the federal government Protects people’s rights and you have Federal constitutional rights that Protect you against state governments Because it turned out states were not That trustworthy in terms of protecting Liberty at least for some people right And those people didn’t really count at The founding which is why we’re okay Um at the founding with the Bill of Rights only restricting the federal Government But America changes and the new robust System of Federal Protection for Constitutional rights that we have We often think of that as sort of the Founding vision and Madison and the Founding fathers but it’s really not It’s all from reconstruction it’s all From the 14th Amendment and so the story That I tell is really we’ve got two Different constitutions There’s the 1791 Constitution with the Bill of Rights where the federal

Government is you know pretty much hands Off Um and then we’ve got the Reconstruction Constitution where the federal Government is actually coming in to Protect your rights and if you think About the big important cases that Everyone loves is where we’re like here You know the Supreme Court is standing Up for this important right Almost all of those are 14th Amendment Cases so you know brownby board of Education is maybe the heart of our Constitutional understanding now As I said New York Times against Sullivan or Miranda all of those cases Are 14th Amendment cases so the Constitution that we think of when we Think of the Constitution is really Reconstruction it’s not the founding Constitution Okay so now I want to have you break Down tell us what the 13th Amendment is In a nutshell what the 14th Amendment is And I know that one’s harder and then What the 15th Amendment is and then I Guess the question is why why is it such A different Constitution after those Three amendments what’s packed into them That gives that kind of change and does It happen right away So the 13th amendment banned slavery Um and it gives Congress the power to Enforce

So you can think of the Reconstruction Amendments as in some ways an inversion Like a flipping of the Bill of Rights so The Bill of Rights I was saying before Puts limits on Congress First Amendment Says Congress shall make no law and in Some ways it gives authority to the States it protects State establishments Of religion the second amendment Protects state militias with the idea Actually that the militias will be a Military counterweight to the federal Government And then the Reconstruction amendments Flipped that they’re like no State shall That’s the 14th Amendment Puts limits on the states and empowers Congress because they all say congress Can enforce this amendment so we’ve got A total inversion of the views about the States and the federal government right We’re giving power to the federal Government because we trust it to defend Liberty because again Constitution Drafters are fighting the last war but This time the last war is the Civil War Where the federal government is fighting For Liberty and the states are the Oppressors And we hear that in did you do the 15th Amendment too sorry before I just no no I actually only got to the 13th I’m Sorry sorry The 13th amendment banned slavery right

Which is very important but only takes You so far because then you have the Question what is the status of the Formerly enslaved in the American Community are they members of the American political Community are they Citizens and that is something that the Former Confederate states really Resisted so having lost the Civil War They accepted that slavery was over at Least in name they tried to restore it In all but name the Reconstruction Congress wouldn’t accept that that’s Where the 14th Amendment comes from and The first sentence of the 14th Amendment Reverses the Dred Scott decision by Saying any person born in the U.S is a Citizen that’s about the rights of the Formerly enslaved and it’s saying yes They will be members of the American Political Community which the former Confederate states are not willing to Accept and that’s why Congress actually Wipes out their governments with the Reconstruction Act puts the South under Military control and rebuilds those States from the ground up really with a Different political Community they get New constitutions they are I like to say New States so it’s really sort of as Lincoln said a new birth of Freedom you Could almost think about it as a new Nation created with reconstruction so Formerly enslaved will be U.S citizens

And then they go on and gives them Rights And it gives Congress power and it says Some very important things about Confederate debt and claims based on Emancipation Um and then the 15th Amendment is what’s Supposed to make it all work going Forward because the idea is we’re going To have racially integrated governments In the South respecting people’s rights Equally providing government services in A way that they never did before and for All of that to work we need multiracial Democracy so the 15th Amendment bans Racial discrimination in voting where The idea is now it’s going to be Self-sustain it but it turns out it Doesn’t work And that’s where my Litany of questions Are gonna come from next so two Questions on that and we love primary Sources here and we just launched a new Founders library and of course people Um greats are in there like uh Martin Luther King Jr and we look at that and We hear from Frederick Douglass from Lincoln from MLK and this is in your Book too about that call for the federal Government standing up for freedom and Standing up for equality that’s a huge Shift from the original belief that that Federal government could was dangerous Needed to be protect and then you switch

To no you’re the ones that are supposed To come in and protect us so when we Think back of understanding our Constitution as a whole Which lens do we take and now depending On which part of the Constitution Well yes so which lens do we take it’s a Super interesting question Um And to be honest to some extent it’s a Partisan question so there’s a Columbia Law professor named David Posen who I Think is brilliant I really like him I Was talking to him last night and he Said we just did this big data analysis Of political rhetoric by presidents and Members of Congress because everyone Likes to talk about the Constitution it Turns out Um which isn’t surprising right because We’re all committed to the Constitution We think our constitution is great and So on I mean I try to complicate that a Little bit in my constitutional Law Class but in our political rhetoric our Constitution is great Um but it turns out that people like Different parts of the Constitution and There’s a very strong partisan divide There so one party maybe I just won’t Say who they are one party talks about The 1787 1791 Constitution and when they Talk about constitutional Provisions It’s almost always those ones and then

The other party almost always talks About reconstruction 13th 14th 15th Amendment so we’ve got these two very Different Visions out there and the Lesson to take from that I think is There’s still attention right there’s Still a battle going on between sort of The vision of the founding and the Vision of reconstruction because we do Get the vision of reconstruction but Then of course the federal government Doesn’t stand up enough black voting Rights are taken away the project of Reconstruction fails and it’s submerged For almost 100 years you know you’ve got Jim Crow segregation all these things That are not consistent With the meaning of the Reconstruction Amendments and the federal government Itself pulls out as well as does not Enforce the Amendments that they had Just in the courts as well correct Yes Yeah so you know every every branch of The federal government fails really the Supreme Court too Um you know the executive Congress There’s attempts to pass enforcement Legislation but America as a whole does not have the Will to face the conflict that’s Necessary to make reconstruction stick Okay now two questions on that data Because if you don’t know me I love data

Like I’m super obsessed with analyzing Data I think it’s so interesting so one Is that would be an interesting thing to Add to a dating app that you like pick What part of the Constitution your Favorite Amendment exactly does that I Want to tell you about Um we have a running uh class activity Where we always ask what’s your favorite Amendment but we tend to ask it as What’s the one you’re most obsessed with Now because at least for us it’s Constantly pivoting and changing and Even one of our team members is obsessed With the third amendment and not many People can say that um but he’s made it Very interesting he writes our blog he’s Our chief editor Um I’ll get that in a minute to my Question is Earlier before we started we were Talking about how this is the first Permanent exhibit in the United States Dedicated to telling the story of Reconstruction That is amazing but also sad because This is a huge moment in American History and we don’t talk about it Enough so I’m just wondering on that Data point is is there an is there a Need and again my background’s education Is there another need for everybody to Really fully understand reconstruction To say I maybe I value it less because I

Didn’t learn about it in school which You know we can talk about the history Of reconstruction is also the history of Hiding what happened during the the Brief time period of reconstruction and Changing the narrative so if your data Skews because of lack of knowledge Um I I think maybe so I think that we Teach reconstruction terribly Um but it’s interesting you know you Offered two possibilities before sort of Misrepresenting and hiding and what’s Happened I think is we started out Misrepresented So from you know the 1870s through the 1960s reconstruction was presented as a Bad thing a lot of the time it was Oppressive it was overreaching and Really what we should have been Concerned about was creating Unity among White people faster and healing the Wounds of the Civil War and Reconstruction was an obstacle to that And it was sort of a bad thing Um and then in part because of the Civil Rights Movement I think and what people Actually call the second reconstruction In the 1960s and 1970s that story Wouldn’t work anymore And we started saying now we are Committed to the values of Reconstruction we’re committed to Equality America is really founded on Equality

But it’s still divisive to point to Reconstruction as the source of that Value because there are a lot of Americans who still look back on the Civil war with sort of complicated Feelings Um and if you’re like identify with the Union Army in the Civil War they are our Heroes you get a lot of people who react Badly to that so what we did I think was We just stopped talking about Reconstruction so much and we’re like Our values are a quality but it comes From the founding because that was Supposed to be something that could Bring people together so we changed the Story We keep the values of reconstruction but We start talking about 1776 and the Declaration of Independence As sort of a placeholder for those Values even though my theory is if you Look at it closely that’s really not What the Declaration is about Yeah and I think it can be really tricky When understanding kind of Even the knowledge and there’s a signal Survey that just came out of research Data and they were asking parents about What to teach students in school and Across the board and they went to Politically active parents on all sides And what they found was every single Parent agreed on one thing and that is

The need for more Civics and history Education so that is like a unifying Quality of everyone that comes to the Understanding it’s I guess my question Is always like what story are we leading With What story do we tell and what Story are we choosing not to tell and When you don’t know a story is missing It’s hard to say well what about that as We think about you know the 13th 14th And 15th amendment and we moved kind of To the next You know eight nineteen hundreds on how Do we see the Bill of Rights change Explosively Um and how do we like what are some of Those key cases or those key stories That really connect the Bill of Rights And the 14th Amendment and does it is it Like a light switch that all of a sudden All the Bill of Rights are now Um Incorporated Um or does that happen gradually over Time it happens gradually Um and it starts in the 1900s so you Know it does start relatively early Um the Supreme Court is looking at the 14th Amendment and the Reconstruction Amendments and sort of wondering what to Do with them And you know in the early Reconstruction Era you get some cases where the Supreme Court is doing what it should be doing So there’s an early case that strikes

Down a law that excludes blacks from Jury service there are some good early Decisions Then there is some sort of puzzling ones And as the years go by the 14th Amendment turns into a fountain of Rights for corporations and it’s Protecting economic interest and Capitalism and employers which is not Really what you would have expected but It does start doing things and so you Get cases where the Supreme Court says Huh I wonder if this Bill of Rights Provision is somehow contained in the 14th Amendment and they go through Provision by provision in different Cases over the years and basically with No exceptions Seventh Amendment right to Jury trial and civil cases but with very Almost no exceptions they end up saying When the 14th Amendment says that no State should deprive a person of life Liberty or property without due process Of law it actually means they must Observe the Bill of Rights and this Brings the Bill of Rights forth sort of Explosively for for two reasons I think One is states are violating those rights More than the federal government did That’s one of the things I said federal Government does violate those rights and It did in the founding era too so like The Sedition Act sure looks like a First Amendment violation now maybe they had a

Different understanding of free speech Then but You don’t get the Supreme Court pushing Back against the federal government as Much because the Supreme Court tends to Sort of move In concert with the federal government And the federal government is powerful So Supreme Court versus the federal Government that’s one branch versus two Branches maybe Supreme Court versus the States if the federal government is on Its side the Supreme Court wins that Battle So when the Supreme Court wants to Articulate a constitutional right if It’s saying States you can’t do this it Can really go forcefully and that’s what We see with some of the early cases About the Bill of Rights Um and the States you get very robust Expressions of these rights from the Supreme Court because it’s a context in Which the Supreme Court is Institutionally more capable of Announcing a broad Rule and then making It stick Fantastic now I I will point out the Constitution 101 class that we have you Can unpack all of these there’s an Entire week-long worth of material on The 14th Amendment and to be honest with You we could have made it like 15 weeks But there’s also one on the First

Amendment the Bill of Rights the Fourth Amendment and unpack a few because There’s so many good stories behind this I’m going to go to some of the questions That I’m getting texts from our online Audience but I also want to respect all The lovely humans in front of me do you Have any questions you want me to start With You want to just Ponder them okay you Can do that one You’re gonna repeat that question for Everybody online I love that you picked Up on that Um Mr Roosevelt said that’s not what the Declaration of Independence is in my Opinion and then as you pointed out There was a long pregnant pause after That meaning like wait what’s on there So what do you mean and thank you for Bringing that because I wanted to talk About it since you mentioned it uh this Is a book that I just published it was Why I’m sort of obsessed with the idea Um but What I was hinting at there was my view That the Declaration of Independence is Really about independence it’s about the Independence of States it’s about the Ability of one political Community to Separate from another and govern itself Um and the phrase all men are created Equal is Part of that argument

But really it’s designed to say no one Is entitled known as chosen by God to Rule over others from birth right all Men are created equal no one starts out In a position of legitimate political Authority over anyone else So it’s a rejection of the divine right Of kings it does work that you can Identify pretty clearly if you set out The way the argument of the Declaration Works but it doesn’t mean that the Government should treat people equally Which is what we now think it doesn’t Mean that the government must respect The rights of people who are Outsiders To the political community So it doesn’t actually mean that slavery Is wrong If you’re enslaving Outsiders so Interestingly like a lot of people were Like hey you know the colonists are Saying King George is trying to make us Into slaves that’s a terrible thing but At the same time they’re enslaving Outsiders so isn’t that an obvious Contradiction and the answer is it’s not So the theory of the Declaration is People form governments to protect their Rights if the government then enslaves The people who formed it and violates Their rights that’s a terrible thing Obviously it’s going against the purpose Of government but if the government Violates the rights of Outsiders people

Who have not formed the government Then maybe that’s okay I mean the Declaration doesn’t say that is not okay So there’s a different reading of the Declaration that emerges and Historically you can see this happening In the 1820s basically and it happens Because of abolitionists so the reading Of the Declaration we have now which is On the walls all around here Saying people saying the 14th Amendment Is what puts the Declaration into the Constitution Yes but it’s the 1820s declaration it’s Not the 1776 declaration Okay I think it was I’m not sure if this was Right but was it Dickinson that said That um Were King George is making us Enslaved well a lot of people at Jefferson did right Yeah Um so second question on that though and Again this is from your book and I Really like it uh Malcolm X saying Pulling another part of the Declaration Out and saying hey if the government is Not legitimate to us we have a natural Right which is one of my favorite things To talk about is natural rights the Right that no government can take away From you could you exist no matter who You are we can flip the table and and go For Insurrection the decoration is also

Stating that correct Yes I mean that’s what the Declaration Is really about the right of rebellion Right if the government is mistreating Its citizens they have a right to Rebel So Malcolm X says this in the context of Criticizing Martin Luther King and the March on Washington and I Have a Dream Speech because King is there saying in The name of the Declaration of Independence people should be treated Equally we should all you know hold Hands and move forward together and Malcolm X was like that is not what the Declaration of Independence is about Which I mean I think he’s got a more Accurate reading there of at least the Original declaration he’s saying what The Declaration is about is the right of Rebellion Um and I think he’s right now who else Said that well the Confederates said That so Jefferson Davis and John C Calhoun Said the Declaration of Independence is On our side because we joined the union With certain expectations for various Purposes now the federal government is Turning against us and denying us the Rights that we were promised when we Signed up because the 1787 Constitution Protects slavery in various ways now Abraham Lincoln and the Republican Party Are in control of the presidency and

They do want to end slavery So the Confederates say the Declaration Of Independence authorizes us to lead The Union And I think this is so fascinating Because our modern conversation across Our country is you know what what is the What’s the reading of these documents And what time period do we read it and How does how do people change and Understand these over time so it’s Fascinating that you’re kind of showing At these moments and different people in The past that are doing the same thing That we’re all doing today to trying to Understand what do these mean and how do We interpret them yeah and and the other Thing that’s fascinating about this I Think is to see the way that the Significance of the argument changes Over time so if it’s 1861 and you’re Saying the Declaration of Independence Supports the Confederates you’re Probably a Confederate Um if it’s nowadays maybe you’re saying Something different so the argument of My book really is something I kind of Hit it at before but I say it a lot more Strongly in the book which is we can Think about two different constitutions And we can say you know what the Declaration of Independence did support The Confederates and maybe the 1787-1791 Constitution actually

Supported them too And now we have a different Constitution Which is better and this is really what We should feel a connection to the 14th Amendment and reconstruction Okay now I promise I will get to Questions online and they’re in front of Me because Madison our awesome team Member is texting them to me so Ben Would like to know can you talk about The influence that early state Constitutions had on the Bill of Rights So where did they get the ideas of the Bill of Rights yeah so a bunch of the Bill of Rights Provisions are drawn from Early state constitutions they’re drawn From things like the Virginia Declaration of Rights or the Magna Carta Um a lot of them and you know this isn’t What made people think of them Necessarily but it’s what made them seem Significant a lot of them are also Responding to abuses by the British Crown so one interesting thing to do is You can go through the Declaration of Independence and look at the bad things King George has done and then you can Find responses to a lot of those in the Constitution and sometimes they’re in The original Constitution so King George Has made judges dependent on his will Alone for their salaries and tenure in Office so when the Constitution creates Federal judges life tenure their

Salaries can’t be reduced but then other Things get responded to in the Bill of Rights so King George has quartered Troops among the colonists which they Didn’t like and that’s what gives us the Third amendment I love any activity that does cause and Effect because you sometimes we think it Like it came out of nowhere it didn’t it Was totally It’s a reaction to a horrible experience They had with the government so they’re Going to try to fix it the next go Around and then activities actually in Our curriculum too there’s a matching Activity you can match it up so I’m Excited about that next question from Ryan can we discuss some of the key Drafters of the Constitutional construct Reconstruction amendments sorry we know The names we talk about Madison we talk About so many famous people from the Founding 1787. could you give us some of The names of the second founding Um yes and so like these are people who I think we should view as as Central or More Central to the Constitutional order We have Um and this is mostly The Radical Republicans in Congress so John Bingham Hugely important in the drafting the 14th Amendment Thaddeus Stevens Charles Sumner Um I would I would put those three

Really high in the list of American Founders and there’s some artifacts from Them for everybody in the room right Around the corner over by the carpet bag You’ll be able to see some pieces of uh That were related to Sumner now last Question is from Betsy she sent it to me Earlier and it’s perfect because the Words are right there privileges and Immunities so there has been a lot of Discussion in the courts recently on Privileges and immunities clause do you And can you give us the back story of The privileges and immunities clause but To help answer her question but will it Regain a constitutional Authority in Some sense and could you break down for Us what it is Kind of how it lost some power and do You think it’s going to come back into Play Sure so the Privileges or immunities Clause With much of the 14th Amendment it’s a Little bit unclear where it came from And what people thought it would do Exactly probably this comes from article Four so there’s a set of rights that States must give to visiting out of Staters Um privilege the Privileges or Immunities clause is supposed to do Something like that for in-staters so The idea is the original Constitution

Protected citizens from discrimination By other states and the Reconstruction Constitution is going to protect people From discrimination by their own States Because this is the new lesson of the Civil War and reconstruction States will Oppress their own citizens right Particularly once you’ve made the Formerly enslaved into citizens the States are going to be trying to oppress Them and we want to stop that So privileges or immunities this is Giving you a set of federal rights that You can assert to protect yourself Against the states rights guaranteed by The Federal Constitution the states Can’t take them away but what are those Rights well it’s not very clear and in An early case the Supreme Court gives a Very puzzling reading of it that Basically makes it sort of pointless Um which everyone thinks is wrong but There’s less agreement on what is right One thing that many law professors do Think though is that if you want to know How you can assert the First Amendment Free Speech right say against the state The answer is it is one of the Privileges or immunities of citizens of The United States so that this Clause The Privileges or immunities clause Should have been what the Supreme Court Used for what we called incorporation Which is the process by which the

Original Bill of Rights Provisions Become rights against the states instead The Supreme Court used the due process Clause which is a little bit weird And for a long time law professors have Been saying oh you should go back to This you should go back to the privilege Of immunity’s clause the Supreme Court Has sort of considered the idea But not seemed very enthusiastic about Her because it would change a lot of Their precedence and no one has really Been able to explain what the gain would Be how would things be different how Would things be better now one way that Things might be different or better Akilamar has said this is that maybe Congress can declare what the Privileges Or immunities of U.S citizens are so That if you start switching to this Clause then Congress using the power That section 5 of the 14th amendment Gives it can maybe go a lot farther so It would be a multi kind of um federal Government effort on that Um it is pretty fascinating it’s also When you hear Professor Roosevelt kind Of walk you through that you can see how The amendment itself is broken down into Different sections and then to prove Your case or to prove explain your Reasoning in deciding a case a judge or A lawyer will say I’m going to take this Section I’m going to give you reasoning

Behind it and I’m going to try to make An argument that is supported by either A past law or by precedent or by law That is written by Congress so you watch The process when we unpack these as well So as we wrap up today I also just Wanted to point out that there’s another Huge movement in our country that is the Next exhibit that you can walk into After you leave here for people that are In the room Um and people online will be doing an Entire month of this in March Um the 19th Amendment and how many People women and people fighting for the Equality of women use the 14th Amendment To say no no we can vote too it’s in the 14th you want to just leave us with a Cliffhanger on that and then we’ll come Back to it uh either in the next exhibit Or over the next couple months well okay Sort of a cliffhanger sort of a puzzle So if you asked people nowadays Suppose we didn’t have the 19th Amendment which guarantees women the Right to vote what if a state said women Can’t vote well it’s sex discrimination It’s with respect to an important right Seems like that would clearly be Unconstitutional under the 14th Amendment probably the equal protection Clause Um and yet the 14th amendment has Another section which is designed to

Respond to sort of a weird consequence Of the Civil War and the 13th Amendment Which is before the Civil War the Three-Fifths Compromise gave slave States extra Representatives based on People that they enslaved which seemed Bad right it should have been zero they Shouldn’t get any extra representatives For the people that they enslaved with The 13th Amendment slavery is over now They’re getting full they they count the Formerly enslaved as full people to Determine the basis of representation so The south is coming back to congress With even more political power than it Had before So that seems wrong to the Reconstruction Congress Um and seems wrong to me too again Because you shouldn’t give States Representatives for people whose Interests aren’t being represented which Was obviously true when people were Enslaved still true in the post-civil War South for the formerly enslaved So the Reconstruction Congress says If You deny the right to vote to the Formerly enslaved you get nothing for Them no representation Which seems like a good way to do that Because if you’re not letting people Participate in your own political system Why should you be able to claim Representation on the basis of their

Presence in your state Um but it doesn’t just say If you deny The right to vote to anyone it says one If it’s people over 21 so there’s some People you can deny the right to vote to If they’re under 21 and then it says Mail inhabitants of the state so the Congress that drafts the 14th Amendment Clearly understands states are denying Women the right to vote and doesn’t Think they should even face a penalty in Terms of their number of representatives For that So it’s an interesting puzzle how now we Think clearly this would invalidate a State law that denied women the right to Vote and yet we needed the 19th Amendment and males the first time it Comes into the Constitution then the Word mail yep yep so it’s sort of sad it Sort of suggests some of the Contradictions inherent in the Constitution that in the 14th Amendment Which is what gives us the ideal of Equality and the equal protection Clause You’ve got this overt recognition for The first time ever of sex Discrimination Thank you very much it’s so fascinating To spend the day talking about the Bill Of Rights but with talking about the Bill of Rights you can’t not talk about All other parts of the Constitution it’s Never just one Amendment or just one

Clause or just one section they’re all Interconnected there’s also a lot more To the 14th Amendment than just what you See behind me on the law Um and so much more to the Constitution But thank you so much for sharing the Stories helping us understand the really Strong connection between the Bill of Rights and the Reconstruction period and The 14th Amendment it’s been a Fascinating time we thank you all very Much in person and online have a great Day everyone thank you have a great day Thanks Well thank you everyone so much for for Tuning in to our Bill of Rights Day Program Um we hope that you enjoyed this talk With Professor Roosevelt I know that I Learned a lot I hope that you all Learned a lot too I just want to let you Know that I will be sending you all of The resources all of the the links the Amendments uh court cases mentioned During this program as well as a Recording of it too so that you can Watch back as as many times as you’d Like Um but again thank you so much for Tuning in this has been so much fun and I hope everyone is ready to celebrate The rest of Bill of Rights Day 231 years Of those first 10 amendments of the Constitution so thank you again for

Joining us and we hope to see you next Time uh and look out for an email from Me for all of those resources happy Bill Of Rights day everyone we will see you Again soon

You May Also Like

About the Author: Roaldo

Leave a Reply

Your email address will not be published. Required fields are marked *