The Last Best Hope? Understanding America from the Outside In
The Reconstruction Episode
Series 3 (Hilary term 2021)
Published 28 January 2021
NB the text below was transcribed automatically by https://otter.ai.
Adam Smith 00:07
Hello, and welcome to the last best hope, the podcast that examines America from the outside in. I'm Adam Smith. We often think of the American Constitution as having been created in the 1780s. But 80 years later, in the period of reconstruction after the Civil War, there was a constitutional revolution. The winners in the war having sacrificed so much to keep the union together wanted, as they put it to secure the fruits of victory. And they did this by passing three revolutionary constitutional amendments. The 13th ended slavery. The 14th defined US citizenship in a way that included black people, all persons born or naturalised in the United States, and guaranteed all citizens the equal protection of the laws. The 15th amendment prevented anyone from being denied the vote on the grounds of race. And all these amendments gave the federal government the right Indeed, the responsibility for enforcement. So the original Constitution of protected slavery, the new post Civil War constitution aimed to protect the rights of those who had been enslaved. The original Constitution or at least the first 10, amendments passed immediately after ratification and the Bill of Rights had sought to protect citizens from the federal government. The new 1860s constitution gave the federal government the responsibility to protect citizens. In the long decades of Jim Crow segregation, the Equal Protection Clause of the 14th amendment was ignored or overwritten, but it was there waiting to be reopened by lawyers and civil rights campaigners. And the black freedom struggle of the 1950s and 1960s is often well described as a second reconstruction, an attempt to complete the unfinished work of the first and now today, after a year in which the underlying racism of American society has been on Raw display the structural inequality, which means that people of colour are disproportionately among those most likely to be imprisoned to die of COVID to be stopped and killed by police. All these things, many people think mean that America post Trump needs a third reconstruction another reckoning with itself. And to find out how the constitutional revolution of that first reconstruction still matters. I sat down virtually, of course, to talk with Eric Foner, the preeminent historian of the Civil War and Reconstruction Era is Emeritus DeWitt Clinton, professor of history at Columbia University, the author of many landmark books, including his famous book on reconstruction, subtitled America's unfinished revolution, and including most recently, the second founding a study of the post war constitutional amendments. Eric, thanks so much for coming on the podcast.
Eric Foner 03:07
Happy to be here.
Adam Smith 03:09
So, Eric, I guess I really just wanted to ask you about the relevance of the Reconstruction Era that you've spent so much of your life studying to the political situation the United States faces today. On January the sixth, the day of that violent attack on the US Capitol, one of the photos that stayed in my mind was of a white guy, with a confederate flag standing in front of a portrait of the Massachusetts anti slavery Senator Charles Sumner, there was another one of him in front of the Whig republican from named Justin Morell. I mean, incredible images, weren't they? I mean, quite aside from the violence or circumstances of the tank, I mean, what was your reaction to an image like that as a historian of the Civil War and Reconstruction,
Eric Foner 04:01
Well like many people, I was sort of just sitting there watching the discussion of the electoral vote, which was fairly boring, you know, and then all of a sudden television began giving you these images of people storming the Capitol, etc. I was shocked like everybody else. But I also noticed that photograph of the Confederate flag juxtaposed opposite Charles Sumner, when the I This must be the first time that Confederate flags was so prominently displayed inside the Capitol Building, at least I can't think of any other time that that happened. My first time
Adam Smith 04:42
Somebody pointed out on Twitter that the only exception to that was insofar as the Confederate flag was incorporated into various southern states.
Eric Foner 04:49
Ironically, that very day in the legislature of Mississippi voted to approve a new state flag which removed Confederate symbol from it. Now it's a kind of funny looking tree that the flat the flag represents. But, you know, my first reaction, what was, weirdly was to say, Good, I'm glad they're displaying the Confederate flag. This is this is nobody can deny what they stand for anymore. If you go around with the Confederate flag that is a symbol of racism and slavery, I don't care how many times people say its heritage, its individual liberty. Anybody who knows anything about American history knows what the Confederate flag stands for, or should know. So, you know, overall, of course, the it all the images of that day were shocking and horrifying. And, you know, really make us think maybe in slightly different ways about about American history, or some of the assumptions we've, we've developed about American history.
Adam Smith 06:00
I was talking on this podcast last time to Heather Cox Richardson, who's written a book, as you may know, called how the South won the Civil War. And her argument is, as the book title suggests, that the Civil War is never really over, because the struggle against the modern day Republican Party is she thinks exactly analogous to the struggle that yes, I suppose the 1850s Republicans had against the the slave power. Do you agree with that?
Eric Foner 06:32
I know how the very, very well, I've known him for many years. I like most of our work, I think it's a little too simplified. But that's not really a criticise criticism. Essentially, yes, the Republican, the current Republican Party, not the party of the 1850s. But now over the past half century really has moved closer and closer toward not a confederate point of view exactly, but to what we call the politics of resentment to appealing, pretty straightforward lead to what white Americans who have so called backlash, you know, who resent the changes that have taken place in American society since the 1960s. Not only along racial lines, but a changes in the status of women. Of course, changes in race relations, changes in the composition of the American population as it becomes more and more diversified. And, of course, not to leave out with Trump. shrewdly perhaps, understood, there were votes to be had people who have been left behind by the forces of economic globalisation and feel resentful, and are looking to strike out at some group or other they can blame. So, you know, the notion that the Civil War is still going on, is a useful one. I think that's what Barbara fields said, at the very, very end of Ken Burns his famous TV series on the Civil War. Of course, there's a corollary to that, which is a little bit disturbing, which is if the Civil War is still going on, it still can be lost. It's not inevitable that it will have been one. And I think there are people out there, including those who stormed the Capitol who would like to reverse some of the changes that were put in place as a result of the Civil War, and particularly the Reconstruction Era after the war, where the laws and the Constitution were rewritten to try to guarantee a significant modicum of racial equality in the country. That bad reconstruction is also going on.
Adam Smith 08:50
So let's turn to talk in more detail about those reconstruction measures. Your as I mentioned there in the intro, your your most recent book on the post war amendments is called a second founding. And you know, I sometimes I sometimes reflect that we're close, we talk about the fifth French Republic when the fifth French Republic now and I think in South Korea, they're in their sixth Republic. But in the United States, we're still fixated on the idea that the Constitution was written by these sort of silk stocking gentlemen in Philadelphia in 1787. But the title of your book seems to do just suggest that those amendments which is the 13th 14th and 15th amendments that were passed after the Civil War, was so substantive, that they constituted something like a second founding. So a Could we talk, should we be thinking really about a second American Republic having been created?
Eric Foner 09:44
I think that's what they were trying to do in reconstruction, and you're right, of course, my. My title of that book is to suggest that these changes was so important that they produced a new constitution, a constitution that For the first time, first of all, barred slavery throughout the entire nation, and as you will know, they were protections for slavery. In the original Constitution, slavery had been a very powerful force in American life in all sorts of ways. abolishing slavery was a more radical act than one might sort of think, in retrospect, in retrospect, it sort of seems kind of inevitable. The Civil War leads to the end of slavery, but it didn't seem so inevitable to people at the time. But of course, that raises the fundamental question, what is going to be the status of these 4 million men, women and children who have now been freed as a result of the Civil War? The 14th and 15th amendments try to address that basic question. And, you know, some of the key changes just very quickly, you know, they the 14th, established a national standard of citizenship. For the first time in American history, the original Constitution spoke about citizens but never quite got around to saying who exactly they were, the Supreme Court and the Dred Scott decision had declared that only a white person could be a citizen of the United States. Now, anybody born here is automatically a citizen. This is birthright citizenship, that was a fundamental change. But beyond that, it's it limited severely the ability of states to interfere with the rights of the citizens. The privilege, no state can abridge the privileges or immunities of citizens without defining them that's up to Congress, states. 14th amendment States cannot deny to any person not just citizens, any person within their boundaries, the equal protection of the laws, we like to think about the Declaration of Independence, and it's powerful words, all men are created equal, a very noble idea. But the word equal didn't appear in the original Constitution, except in one clause about what happens if people get an equal number of electoral votes. It was the 14th amendment that put into our Constitution, the notion of equality among all Americans. And then the 15th amendment was meant to guarantee the right of African American men to vote. before the Civil War, very, very few black people had the right to vote. And if they did, in a few states in New England, where there were hardly any blacks, now, they were brought into the American body politic. This was a fundamental change in the whole nature of the republic's. And so that's why I call it a second founding veteran. Another way of putting it if you want to borrow a phrase from the current era, they would try to produce regime change. They were trying to change a regime grounded in slavery, in many ways, into a regime based on freedom and equality. That's a pretty tall order. Let's put it that way.
Adam Smith 13:07
Yeah. And it was an ambitious project that was made possible only by the very particular and dramatic circumstances of the late 1860s. So at a moment when the when the north or the Republican Party, in particular with a with a large majority in Congress, had huge political power. notwithstanding the fact that up until the beginning of 1869, they had a President Andrew Johnson who wanted to stand in the way of their agenda at every step. This was an incredible moment in American history, because there was a congressional majority that can do that could do these things. But you know,
Eric Foner 13:50
the presence of Andrew Johnson is important for two, somewhat contrary two reasons. One without going into Johnson, I my view is, Johnson is the only president who gives Trump a run for his money for the award as the worst president in American history. And there's a lot of similarities between them actually down to their mode of expression. They were they were both full of rancour against their opponents and all sorts of extreme language, the fact that they were impeached, the fact that they could not get along with the opposition, in Johnson's case, his own party in Congress, but the point is that having a president opposed to what Congress is doing, man, that everything has to be passed by a two thirds majority, to override Johnson's numerous vetoes of these measures that a president cannot veto a constitutional amendment that's separate, but the law is implementing things. And that meant that you needed unity in the Republican Party. And and in terms of the history, it's important to remember that because there's this Sort of myth out there, that the these measures were all the result of radical fanatics, you know, who were trying to impose, you know, vindictive measures on the south, they weren't they were the measures of the entire republican party, virtually no republican voted against any of the reconstruction measures, and almost no Democrats in Congress voted in favour of them. I think Robert D. Johnson was the only one who cast a positive vote on any of these measures. But so in other words, the unity of the Republican Party was necessary, which meant that what was passed was the mainstream policy of the party at that moment. It was very radical, comparing it to the pre War era. But it certainly wasn't all that the Radical Republicans wanted. That's important in terms of how we think back on the Reconstruction Era. It wasn't just a group of fanatics forcing through measures that most people didn't really want.
Adam Smith 16:02
bearing that in mind, Eric, how important was it in the internal deliberations of the Republicans, not just congressmen, but editors, and the wider sort of Republican Party and people who are participating in these debates in the public sphere? How important was the motivation not of securing the rights of formerly enslaved people as such, but just of securing the state, the anxiety that having collapsed into this horrific Civil War once it could happen, again, unless measures were put in place in order to try to just suppress what we would now call, you know, domestic terror organisations to ensure that the boundaries of the political sphere were policed in such a way that there was some things that were just illegitimate. And one of those things was the legitimate was people coming into congress who were still supportive of openly supportive of, of insurrection?
Eric Foner 17:03
Yeah, that's very true. I mean, these measures had many motivations, as most congressional measures probably do. There's a mixture of humanitarian sentiment, let's say there's a mixture of party advantage. There's a mixture of, as you say, strengthening the national state, which is one of the major things going on in reconstruction. You know, when when Congress first met in December 1865, to consider all this, Thaddeus Stevens, the great radical, talked about black suffrage that you put into giving black men the right to vote. And he said, Why is that important? Number one, it is right. Number two, it will secure the majority of the Republican Party. And then he says, Why is that important? Because the republicans are the party of the nation, the party of you know, anti slavery, we are the true Americans. But in other words, so what is this motive? It is partly, you know, this is right, and partly is to keep the republican party in power. And, of course, as you say, to secure the stability of the nation, and there are many parts of these amendments, which are not really remembered today, which are very directly connected with that down to making sure that the Confederate debt is never repaid. That's in the 14th amendment. If you were a southerner and you patriotically loaned money to the Confederate government, that money is gone, you're not going to see a penny of it. Same thing with slavery, no one is ever going to get, you know, payment compensation for the loss of their slave property. But they also put into effect that people that complicated measure in the 14th amendment, that political leaders of the South, who had taken an oath of office in the United States before the war, and then joined the Confederacy, are barred from holding public office. Again, that's policing the boundaries of the state, as you said, trying to make sure that governments in the south are composed of what was called truly loyal people. So yes, they've tried to reshape the body politic, partly, as you said, to make sure that nothing like the Civil War ever happens. Again,
Adam Smith 19:20
as you've explained, one of the things that the these amendments did was to accrue power to the federal government, the Bill of Rights, the first 10 amendments to the United States Constitution, were imagined to apply to the federal government because I suppose the assumption was that it was a federal government that was the likely source of tyranny that was the level of government was supposed to become overmighty. But what these postwar constitutional amendments do in effect is to reverse that relationship and give the federal government not just the right but the responsibility to enforce the equal protection of the law.
Eric Foner 19:59
Adam Smith 20:01
That's a dramatic change. How did Congress go about trying to do that? How was that enforcement? What was the forcement mechanism
Eric Foner 20:10
to pursue your point there, first of all, just compare the first words of the First Amendment, Congress shall make no law. It's directed, as you said, against the federal government. Each of the three Constitutional Amendments of reconstruction ends with a section saying Congress shall have the power to enforce this, it Congress shall make no law, that's a restriction on the federal government. Now, Congress shall have the power. It's the states that are restricted from interfering with the basic rights of citizens. And the very fact that you have that final section about Congress shall have the power to enforce it by appropriate legislation. That means reconstruction is not just a moment, it's going to continue. Congress will continue watching and seeing what further legislation is necessary. And during the late 1860s. And into the 1870s, they passed all sorts of laws, civil rights laws, enforcement laws to try to combat the Ku Klux Klan and other violent groups that were, you know, tried to restore white supremacy in the south, they establish the Department of Justice, which had not even existed up to 1870, they expanded the appellate jurisdiction of the federal courts. The federal government in reconstruction, unfortunately, was not the massive bureaucratic state we have now it was not very well equipped to police the entire South, you just didn't have enough manpower there. And that eventually, will help to produce the end of reconstruction, you could send troops into the South again, as grant did in 1871. But you know, constantly sending troops to deal with local disturbances is not likely to be very popular in a country that thinks of themselves as a democracy. You can do it on occasion, but it's not a permanent solution to you know, having a orderly political system.
Adam Smith 22:14
You mentioned the Ku Klux Klan, the Ku Klux Klan acts were one way legislatively in which Congress tried to enforce the provisions of the 14th amendment, how successful whether
Eric Foner 22:28
Well, they were successful To start with, if you are willing to really vigorously enforce these measures, you can succeed grant did crush the Ku Klux Klan. In 1871, he sent troops into South Carolina, they arrested large numbers of people, they held them in jail, they suspended. They establish martial law, basically for a while. And they put a lot of people on trial. And a lot of Klansmen fled the, in fact, ironically, a bunch of them fled to Canada, retracing the steps that fugitive slaves use that used to take getting from the south to Canada, where they were safe. So it worked at first. And in fact, in 1872, when you had a presidential election, things were pretty peaceful throughout the South. But then for complicated reasons, violence begins to rear its head again, and northern commitment to the enforcement of these laws begins to wane. One reason is the supreme court, even during Reconstruction, starts interpreting these amendments in an extremely narrow way. The court, the justices are products of the pre war jurisprudence, which basically is state centred, which says most of your rights are come from the states are protected by the states. And they basically say that the constitutional amendments really haven't changed all that much. Blacks are citizens, yes. But if their rights are violated, it's up to the states to protect them. But the Klan and other groups, it wasn't only the Klan, there were plenty of them was the state governments was seem to be too weak to put down this kind of violence. And increasingly, the court said the federal government couldn't do it, either. So that was, you know, one reason for the waning of reconstruction.
Adam Smith 24:22
Let's take the the issue of the rights of black people to vote. You've mentioned that that was the purpose of the 15th amendment, but it wasn't expressed as a positive right. Was it it was expressed in terms of a prohibition on the on states to deny the right of the vote to people on the grounds of race. So was this something about the is that an example of the of there being something about the way these amendments were framed that gave the courts the wiggle room to interpret them in ways that rolled back The intention of people who drew them up,
Eric Foner 25:05
how courts interpret laws, how the Supreme Court interprets laws is always a sort of controversial thing. Yes. Yeah, there were problems with the way they were framed. And it's an interesting point you make about the 15th amendment because at that's the way all of our voting rights are described in the constitution that people are not always aware, there is no positive right to vote in the constitution that comes from the States voting is is, is regulated by the states, there are 50 different sets of voting regulations. In the United States, which is a kind of strange situation, we saw a little bit of the problem there in the past, presidential election in one state, you can vote by mail up to the election in another state, you can't vote by mail until except for weeks before. In one state, you have to present a voter a you know a driver's licence to vote in other states you don't. There's no national regulation, what there is, as you said, on national prohibitions on ways of limiting the right to vote, so a state nowadays cannot say black people can't vote. It cannot say women can't vote. It cannot charge a poll tax for voting, there are four or five Amendments of the Constitution, which eliminate ways of denying people the right to vote, but don't say specifically, well, who then does have the right to vote, that's still up to the individual states. And to my mind, that's a very unfair, you know, it's not a very good situation in a large, complicated democracy. But so, for example, the 15th amendment did not prohibit literacy tests. It did not prohibit property qualifications for voting. It was, by the way, this wasn't an oversight. It was stated in the congressional debates that they this measure could be gotten around in various ways. If you put in literacy tests, and uphold tax and other things, you would eliminate most of the black voters, even if you didn't say anything about race, and when the southern states around the turn of the century, did take the right to vote away from black men. They didn't pass a law saying black people can't vote that would have violated the 15th amendment. But they used all these other ways, which succeeded in pretty much eliminating the black vote. But the underlying thing is here is that the states wanted to keep control of the voting system and the voting qualifications. You could not have gotten the 15th amendment passed, except as a measure about black suffrage, which by this point, the the Republican Party was united behind that principle, not always, but at this point it was, but for example, California wanted to make sure that they could keep Chinese from voting, which they did. So they wouldn't, they wouldn't accept it just an all adult men could vote or something like that. So if there were problems in these amendments, nonetheless, the Supreme Court over time, it did interpret them in the narrowest possible manner, as time went on, where there were possible interpretations, they close it, they always seem to take the one that was the least beneficial to African Americans.
Adam Smith 28:32
So you've we've been talking about the ways in which these past four amendments constituted a second founding. But everything you've been saying in the last few minutes reminds us of the limitations of these amendments. I mean, this specific issue about the American Constitution, not including a positive right to vote, is as you've as you've implied, astonishing to outsiders, I mean, other federal systems, you know, Canada or Australia have a national Electoral Commission, and uniform rules across the various jurisdictions about who is entitled to vote and how their vote should be conducted. Why is that? Why was that then? And does that continue to be up until today so completely unimaginable in the United States? Because that's a non starter, isn't it? If you were to try to propose that now a national Electoral Commission, it would get it wouldn't get anywhere with it. And it never would.
Eric Foner 29:29
Because the Democratic Party, it seems to be committed right now to passing if not a national Electoral Commission, a national set of standards about voting. There's a the the house bill number one that's being introduced with this new Congress is a voting rights bill. Partly it's meant to stop states from throwing people off the voting rolls, which many of them have been doing lately to Georgia, Texas, Wisconsin. Where, generally where Republicans are in charge, they've tried to limit the right to vote as as best as best they can. So, you know, I don't know, I don't know what to say. But I think you're right. The idea that it's the states that regulate voting is part of our federal system, which it seems impossible to, you know, override,
Adam Smith 30:22
what what do you think are the lessons, we've got a moment now where there will be a very narrow democratic majorities in both houses of Congress and a democratic president? What do you think? Are there lessons that they can draw from the Reconstruction Era in a in a positive sense?
Eric Foner 30:43
Well, of course, their margins are razor thin. Right.
Adam Smith 30:48
Right. So it's very different from the situation the republicans were in in the 1860s. In terms of their
Eric Foner 30:53
vote, presumably, in the Senate, what are they 10 to 12 seats ahead in their house? Well, one thing is it puts an enormous burden again, on party unity. Just as during Reconstruction, a few dissenters in the Democratic Party and bills will not be able to get past assuming that almost all the republicans will be opposed to what Biden is trying to do. You know, I think the lessons, we don't like to talk too much about direct lessons of history. But the lesson we've seen in the last couple of weeks here is number one, the fragility of democracy in our country. When I said earlier on in our conversation, that we might want to rethink a little bit, some assumptions about American history, you know, that we have a tendency to assume that the United States is the last best hope, as Lincoln said, and as you have said, is the symbol of democracy for the entire world, we are a model of how democratic you know, democratic government can survive and prosper. But it may be that commitment to the idea of democracy is less deeply rooted in our political culture than we perhaps would like to think. People who stormed the Capitol, people who buy into all these mythologies about fraud about stolen election, people who, well, when Trump started, remember, his main issue was actually that Obama wasn't even an American, that he was born, you know, he wasn't even eligible to be president, which kind of reminded some of us that the Dred Scott decision, and it's saying that only white people really are citizens of the United States. And then again, I think with reconstruction, it's the need for persistence in enforcing these rights. If you if you stop, if you just get tired, if you, you know, get exhausted by the struggle, then it's, it's not going to succeed. I'm very nervous. I'm very concerned about the state of our country right now. Because I fear that the, you know, the Trump bites are not going away, even though he is no longer in the Oval Office. And they are going to be around with their mythologies with their stab in the back. idea. You know, there's a, I hate to use this term. But this is sort of proto fascism. bubbling around, it's not a majority or anything like that. But between the cult of the leader, the militaristic frame of mind that the stand for democracy, that we've seen the racism, it does remind me of some of the European fascist movements of the earlier in the 20th century. Again, I don't mean to be too much of an alarmist. I'm generally an optimist. But what's happened in the last month in our country has made me a little less optimistic than I used to be about the future of our political system.
Adam Smith 33:59
Earlier on you, you mentioned that one of the provisions of the 14th amendment was designed to prohibit people who'd held office in the Confederacy from holding office ever again. And this is the third section of the 14th amendment which says no person shall be a senator or representative, or electoral president or vice president or hold any office, civil or military under the United States, who having previously taken an oath, shall then have engaged in insurrection or rebellion, or given aid or comfort to the enemies thereof. And that was clearly specifically designed with people who'd supported the Confederacy in mind, or you've recently suggested that the third section of the 14th amendment should be used to bar Donald Trump from office and how would that work and what problem would that solve?
Eric Foner 34:51
Well, you know, there isn't impeachment about to happen. impeachment requires a two thirds vote of the Senate to convict. It's unlikely In my opinion that will happen since republicans mostly is still behind Trump. Although there probably are a good number of Republicans that wouldn't mind if Trump were barred from all those prospective candidates for 2024. But, you know, yeah, the third section, nobody had ever heard of the third section of the 14th amendment except fanatics like you and me who study these things. But, you know, my view is, this is in the constitution for a reason and Trump has incited insurrection in the last week. He has incited people to storm the Capitol, he did take an oath to uphold the Constitution to seems to me Congress can declare that he is as a result of what happened in eligible to hold office anymore. Under the 14th amendment, how would that work, you wouldn't need a giant trial, you probably would need a hearing of some kind. This is not a trial with lawyers and witnesses, really, it's a political, it's almost like a qualification for office. It would be as if, let's say AOC, the famous radical Congresswoman ran for president. They would say, Well, you can't be president right now. Because you're not 35. You don't meet the qualifications. You're not 35 years of age, yet, you can't run, I'm sorry, you're off the ballot. If Trump tries to get on the ballot dishes, I'm sorry, you can't run, you took an oath to support the Constitution. And then you incited insurrection, and therefore under the Constitution, you are ineligible to hold any office under the United States. Now, this has been applied only a very, very few times it was actually applied in reconstruction. Some local officials in various states were just booted out of office, by Congress or by local officials saying well, you don't qualify anymore because of this section of the amendment. The last one, this is not a very good precedent. Are you aware of this Victor burger, the socialist congressman from Wisconsin, who was evicted from the House of Representatives under the third section of the 14th amendment, but he had been convicted under the Espionage Act of 1918. Because he opposed American intervention in World War One. And Congress that said, well, you have committed this crime you can't serve. Later, the Supreme Court overturned Berger's conviction, and they let him back into Congress. And he served two more terms.
Adam Smith 37:35
Yeah, I've only heard of that case, because you wrote about it. And so I looked at my only I think you mentioned it in your piece in The Washington Post. So I looked it up. And I did. I did think that you just kind of said this, really. But the the analogy, the difficulty with the analogy with Trump is that, as you say, he had been convicted in a court, we can debate about whether he should have been or not and the legitimacy of that legislation. But Trump has not been convicted by any court. I mean, would Congress first have to pass some piece of legislation to say that he, which which Trump would then all
Eric Foner 38:11
the way, I think a congressional resolution would be sufficient, and that's how they did it in reconstruction. A resolution was passed in several Virginia officials were declared ineligible for office by a vote of Congress a resolution saying, you did this, and you did that. And therefore you you are ineligible for office, they were removed from office. Now, these were local. These were not like president united states. But and they were told you can never serve in office again, because of this section. It's a complicated situation now, because there are so few precedents for how this, there would have to be some procedure. That's why I say maybe you're hearing that afternoon when somebody would say, Well, he said, Let's march on the Capitol and be tough. You don't get anything by weakness. And I'll be there with you. Of course, he immediately then went inside and watched on TV. And that constitutes assisting insurrection. Now somebody might say, No, it doesn't. It's freedom of speech. They'd have to vote on that. But it wouldn't. I don't think it would require a giant trial and all that kind of thing, because it's not a criminal procedure. And no one has a right to serve as a as an office, so to speak. In other words, Congress,
Adam Smith 39:31
it could be challenged in the courts, presumably and Congress would be vulnerable that there is Article One, section nine says that Congress can't pass bills of attainder. In other words, they can't pass bills. criminalising an individual because that should be the role of the
Eric Foner 39:48
right but could cut but since that was in the Constitution, when Congress passed the 14th amendment, that section has equal weight to the bill of attainder thing In other words, it's now also part of the Constitution knowing that the bill of attainder is in there. So, Adam, I am not a lawyer. I am not a law professor. And no, my friends are lawyers. I'm very peaceful. I never, I've never been in a court Bailey. So I'm not the person to solve all these problems. But I was the person as a historian to at least put this out there as something considered. And one of the reasons is, the Biden administration does not want the first two months of his presidency to be consumed by an impeachment trial of President Trump, especially because Trump will no longer be in office. Because the Constitution does say, if there's an impeachment trial, then all other business stops. That is that what he wants the first two months is crisis, that Congress can't do anything except debate the impeachment of Trump. I think that
Adam Smith 40:55
sounds like, Yeah, it sounds like a nightmare. I mean, I suppose the underlying point is that on the on these massively consequential but the relatively narrow issue of whether what Trump said on January the sixth was a direct, had a direct impact on those people violently assaulting the Capitol, one thing, but the broader question is the big lie, that not just Trump, but loads of Republicans in the House and the Senate supported, which is this allegation that the election was stolen, and there's absolutely no evidence to support that it's been taken to multiple courts around the country, and they've all just laughed out of court. And yet the Republican Party, vast numbers of the Republican Party in the polls show that most Republican voters now unsurprisingly think this are claiming that the election was fraudulent. Now, that is a profound danger to any democratic
Eric Foner 41:47
Its the the big lie technique which we are familiar with from the 20th century, and people like Hitler, and others understood that the bigger the lie, perhaps the more likely people are to swallow it whole.
Adam Smith 42:02
And is there any analogy from the Reconstruction Era that could help deal with that? Because this, this third section of the 14th amendment strategy might work to bar Trump from running office running for office again, legitimately. But how do you somehow prohibit, as 1860s, republicans wanted to prohibit people from participating in public life, whose values whose thoughts whose ideas were fundamentally at odds with it, who were dangerous, and therefore had to be prescribed in some way. That's why there were all these oaths that had to be taken across the
Eric Foner 42:38
subject, the ironclad oath, right, which meant that you had never held a confederacy in any way.
Adam Smith 42:47
So it always feels to me like you know, you need and we need a new era of the earth, you need some kind of fundamental sense that you signing up to the rules of the game. And the rules of the game are that we have elections, and unless there's evidence that the elections have been fraudulent in some way, and obviously fraud can happen, but then you take it to a court and you litigate it. And and if there is no evidence, then you have to accept the legitimacy of your opponent.
Eric Foner 43:15
Certainly, if let us say the state of Texas announced that it doesn't recognise Biden as president because he was fraudulently elected. I'm not talking about secession and civil war. I'm just saying we will not deal with him as president any order that he issues, we will not accept any sort of like the Nullification Crisis, maybe.
Adam Smith 43:39
Eric Foner 43:40
Well, how far would that get? Probably not very far, probably the courts would immediately, the governor would soon be held in contempt of court for let's say this, and we're not paying tax income taxes to the federal government from Texas, because the fraud is present. I don't know I think the bigger issue is really freedom of speech and civil liberties that Trump let's say, can't hold office anymore. And he can't be on Facebook or Twitter, but he can certainly find ways to get his ideas out there. There is no way you can muzzle Trump forever. And there are a lot of people who want to hear what he has to say, unfortunately.
Adam Smith 44:20
Finally, Eric, I just wonder whether I mean, this is you just said you're an optimist. And I think I'm an optimist, basically, too, but I do wonder looking at the United States whether the problem is the Constitution of the United States is so sclerotic, it's so difficult to imagine it was possible to amend it in a relatively somewhat revolutionary way, in the 1860s. In these exceptional circumstances after the Civil War, it isn't possible to do anything like that now, and the Constitution enables a minority, in this case, the republican party that hasn't won a majority of the popular vote in the presidential election. Well, you know, in 2004, before that, it was 1988, wasn't it? So there might be minority party and yet they're able to wield disproportionate power because of the electoral college because of the Senate, because of the way that seats are allocated in the house, and none of these things can be changed. And that's a profound problem for a country is
Eric Foner 45:14
no, you know, yeah, I think you as a resident of the United Kingdom can say that more freely than us, law abiding Americans, but one of your predecessors, I don't know if you ever met him as one as the Great British historian of the United States, William Brock, who?
Adam Smith 45:35
Oh, yes, I knew I know, William knew William Brock very, very well, yes, look
Eric Foner 45:39
on reconstruction, which is a very good book An American Crisis. He makes the remark that really the big problem was the Constitution itself, and the way Americans so it revere the Constitution, that they try to make believe that what they're doing is constitutional, even when it isn't, or they insist you have to change the constitution in ways that are very difficult, as you said, and that really they should have what they should have said in reconstruction is we have to have a completely new constitution here. As you said, Francis had five or six of them, it doesn't seem to have damaged France, that they have all these different, they've had these different constitutions. France is still there, right? The nation has not broken up. So yeah, but that's not that's a non starter in American politics, or even a political thought the We are, we are wedded to the idea that we have the greatest constitution in the world, and nobody can say anything bad about it. Eric,
Adam Smith 46:44
thanks so much for joining me, this has been a really enjoyable conversation, albeit about rather alarming.
Eric Foner 46:50
Thank you very much.
Adam Smith 46:58
One problem that has always haunted American politics. And in this as in so many ways, the US is hardly alone, is the question of when legitimate opposition becomes illegitimate? It's a version of the classic liberal problem. How far can a free society tolerate people who want to tear it down? In the 1860s, Congress had to work out how to deal with people who had waged war against the United States, but who wouldn't our citizens again, people who rejected as a legitimate a new biracial political order, what could be done about them? How could the loyalty of such people be measured? On what terms Could they be allowed back into public life? One of the things that constitutional amendments did was to give the federal government some tools to deal with those they thought still disloyal, and to empower those often African Americans, they thought sufficiently loyal. Today, a significant chunk of the American population think that not only was the presidential election rigged, but that the multiracial, pluralistic America represented by Joe Biden and Kamala Harris, is illegitimate on some fundamental level. If not everyone agrees to the rules of the game. How can politics work? It was the question of the 1960s. And it's a question for now. You've been listening to the last best hope podcast from the RAI, Oxford University's Centre for the study of the United States and its place in the world. And if you've enjoyed this conversation between me and Eric Foner, then do listen to some of our other episodes. Subscribe, and like us to make it easy for other people to find us. Goodbye.