Pod Insights 5-4 250 Years of Bad Decisions: SCOTUS, the Civil War, and the End of Reconstruction About this episode In honor of America’s birthday, join Peter, Rhiannon, Michael and University of Pennsylvania Law Professor Kermit Roosevelt as they talk through how the Supreme Court greased the wheels for the end of Reconstruction and the rise of Jim Crow.
Check out Kermit’s book The Nation That Never Was: Reconstructing America’s Story. https://smile.amazon.com/Nation-That-Never-Was-Reconstructing/dp/022681761X
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5 to 4 is presented by Prologue Projects. This episode was produced by Allison Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.
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Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:02 Speaker 00 Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are bringing you part one of a three-part series, in which they'll celebrate our nation's semi-quincentennial birthday by roasting some of its very worst Supreme Court decisions and digging into key moments in America's history, when the court moved the country away from its ostensible founding ideals. Joining the hosts today is Penn Law professor and constitutional law expert Kermit Roosevelt to discuss a series of cases that spanned the pre-Civil War era to the end of Reconstruction, including Dred Scott, Slaughterhouse, and Plessy v. Ferguson. Part two of this series will arrive in July, with part three to follow in August.
0:46 Speaker 00 So, stay tuned. This is Five to Four, a podcast about how much the Supreme Court sucks, and how it has sucked for a long, long time.
1:00 Peter Shamshiri? Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have put our civil rights to sleep, like Donald Trump at a public event. I'm Peter. I'm here with Michael.
1:11 Speaker 02 Hey, everybody.
1:12 Peter Shamshiri? And Rhiannon.
1:12 Speaker 03 Hello.
1:13 Peter Shamshiri? And we are joined for this episode by a special guest, Penn Law professor Kermit Roosevelt. Kermit, welcome to the pod.
1:21 Speaker 02 Yeah, thanks so much for having me. I'm a big fan.
1:23 Peter Shamshiri? Penn Carey Law?
1:25 Speaker 02 Yes.
1:25 Peter Shamshiri? How long has the Carey been in there?
1:27 Speaker 02 It's been like, five years now. So, they tried to roll it out all at once, and people reacted really badly. A lot of alums were upset that the school was changing its name.
1:36 Speaker 03 Oh, no, not the alums.
1:38 Speaker 02 So then, they tried to sort of soft launch. Well, the alums and the students. The students were like, "No, no one's gonna understand that we're really Penn Law anymore", which I thought was kind of overstated as a concern. I thought, like, employers could figure it out. But yeah, so we've been sort of gradually doing it.
1:54 Peter Shamshiri? Got it. Now, I am one of those alums, not one that complained, because I don't care at all, but does this mean that merch that just says "Penn Law" on it would be valuable? Could I sell this?
2:05 Speaker 03 Vintage.
2:06 Speaker 02 Oh, yeah.
2:06 Speaker 03 Get it on eBay.
2:08 Peter Shamshiri? Yeah.
2:08 Speaker 02 Yeah, it's like an upside-down stamp or something.
2:10 Peter Shamshiri? Right, right. Nice. And I imagine Carey is the name of a very wealthy man who made a very large donation, is that right?
2:18 Speaker 02 Yes. Oh, yeah. No, we wouldn't sell the naming rights cheap, believe me.
2:22 Peter Shamshiri? I think they should do whatever they need to get that endowment up. Penn Law brought to you by Colonel Sanders, whatever, you know? I, I think it's all good.
2:31 Speaker 02 Well, you know, what I did notice over like my first 10 years here was that when I came to Penn, all of our buildings were named after legal luminaries and like James Wilson and people like that.
2:41 Peter Shamshiri? Yeah.
2:41 Speaker 02 And then gradually over those 10 years, they all acquired the names of donors. All of our buildings are named for donors now.
2:46 Speaker 03 Sure. Now it's Samsung building for law education or whatever.
2:51 Peter Shamshiri? Well, if we ever go back to the luminaries, maybe I'll get my name on one of those.
2:56 Speaker 03 Maybe it'll be a little 5-4 building.
2:58 Michael Liroff? There you go.
2:59 Peter Shamshiri? Yeah.
2:59 Speaker 02 I'll put in a plug for that. I don't know how far it's gonna go.
3:02 Peter Shamshiri? The students would love it. The students would love it.
3:06 Speaker 02 The students would, the students like told me that you mentioned me on 5-4 years ago. They were really excited.
3:12 Peter Shamshiri? Yeah. That's good to hear. We've mentioned many Penn Law professor, Amy Wax.
3:17 Michael Liroff? She gets, she gets mentioned now and then.
3:19 Speaker 02 I don't know if the students told her that.
3:24 Peter Shamshiri? Well, she keeps them locked in a basement without access to podcast equipment. All right. Today we're doing a special episode in honor of America's 250th birthday. We're gonna have a few episodes in the coming months about the Supreme Court. And we're gonna start today with an overview of the role that the Supreme Court played in the lead up to and aftermath of the Civil War, which is why we had to bring in someone who has like read history books and things like that.
3:52 Speaker 03 Yeah.
3:53 Michael Liroff? This is gonna be the first in a series, and I think we're gonna try to find various sort of pivot points in American history where maybe things could have been different, maybe not. That's one of the questions we'll be sort of exploring. And the role the court played in choosing the direction we did go and where we went wrong, which I think will be a big theme in this episode.
4:18 Peter Shamshiri? And so I think the place to start here for this episode would be with The most infamous Supreme Court case of all time, Dred Scott v. Sanford. Ree, I'm gonna hand this off to you, but I do want to say beforehand that we've never covered this case, probably because it's a little too obvious that it's bad.
4:39 Speaker 03 Yeah, a little on the nose. Yeah.
4:41 Peter Shamshiri? Yeah, no one disagrees with us, or at least no one is brave enough to disagree with the idea that Dred Scott was a bad decision.
4:48 Michael Liroff? Maybe Clarence Thomas?
4:50 Peter Shamshiri? Clarence Thomas may or may not agree with Dred Scott.
4:54 Michael Liroff? He's been citing it a lot lately.
4:56 Peter Shamshiri? It depends on how you frame the question.
4:59 Michael Liroff? He's found it to be at least be persuasive authority a number of times recently.
5:03 Speaker 03 Yeah.
5:04 Michael Liroff? It's a little concerning.
5:05 Speaker 03 Yeah, so early on in the, in the 5-4 universe, we were asked a lot, why don't you do Dred Scott? Well, you know, it's a podcast about terrible Supreme Court cases. That's the number one dog shit one that we have really is Dred Scott. Why don't we do it exactly? It's pretty on the nose, but for a discussion about the Supreme Court at 250, of course, like Dred Scott really kicks things off in a very, very serious way. So let's get into it. In the 1840s, the contradictions inherent in a new country, the United States, that was founded on principles of liberalism, individual liberty, equality, inalienable rights, you know, this kind of thing on the one hand, but existing at the same time
5:49 Speaker 03 with an economy largely powered by institutional slavery. These things are coming to a head already and really revealing itself to be untenable. It's not just like the eve of the Civil War when things kind of boil over, right? So it's already coming to a head, tensions mounting even back in 1820, when Congress passes the Missouri Compromise. There are vicious arguments on both sides of this. It is extremely heated, but the Missouri Compromise is an agreement reached to admit Missouri as a slave state and Maine as a free state. This keeps the balance of free states and slave states equal in terms of their representation in Congress, this kind of thing. And the Missouri-
6:32 Speaker 03 Compromise additionally prohibits any new states north of the 3630 parallel from being slave states moving forward. This Missouri Compromise kind of mollifies tensions for a while, but we are on a crash course from the beginning towards civil war. So that's a bit of the legal backdrop here. The Missouri Compromise becomes one of the issues in the case of Dred Scott. So let's talk about Dred Scott a little bit. We're now in 1846. Dred Scott and his wife Harriet, they were enslaved people living in Missouri, the state that had been created as a slave state, according to the Missouri Compromise. And they decide to make an attempt through the legal system at attaining freedom.
7:16 Speaker 03 Basically, enslavers had previously traveled with Dred Scott to free states or free territories above that Missouri Compromise line. And there was a doctrine at the time called "Once Free, Always Free", being discussed, brought to court, et cetera, challenged in Missouri. This was being tested. And this principle held that if an enslaved person had been taken to a free territory, they remained free, even if they were returned to, quote unquote, "a slave state". So the black people, we should say this up top, especially in an episode where we're starting to talk about what could have been different, what should be different about how we understand this history. The black people who filed what were called "freedom suits"
7:59 Speaker 03 in St. Louis over a course of a couple of decades before the Civil War, these freedom suits to argue that they had been to free states and free territories and should be considered free. These are some of this country's first civil rights litigants, and they should be celebrated as such, according to historian David Thomas Koenig. Essentially, Dred Scott is suing for his freedom. He takes his case to court, a freedom suit. He's suing for his freedom, the freedom of his family, based on these legal principles that slavery is being prohibited in new territories, that he visited those territories, he should be considered free as well. Now, It's the worst Supreme Court case in history. So we know that the Supreme Court did not agree with him.
8:43 Speaker 03 The holding that comes down horrific in terms of the language used horrific in the holding itself horrific in the consequences that it created. The holding written by Justice Taney says that black people.
8:57 Michael Liroff? Tony.
8:58 Speaker 03 Oh, Taney.
8:59 Speaker 02 It is Tony.
8:59 Speaker 03 Tony, Tony, thank you.
9:00 Peter Shamshiri? Yeah, I always say Taney too. And I will be saying it throughout this episode.
9:04 Speaker 03 Taney kind of sounds like more racist to me, like tiny.
9:07 Peter Shamshiri? It does. Tony sounds almost ethnic.
9:10 Speaker 02 It's Taney in Philadelphia.
9:13 Speaker 03 Okay.
9:13 Speaker 02 Taney Street.
9:14 Peter Shamshiri? That's right.
9:14 Speaker 03 Oh, that's right.
9:15 Speaker 02 Taney Dragons.
9:16 Speaker 03 Yes. So this majority written by Justice Tony says that black people are not citizens of the United States. They can never be citizens. They do not have the rights and privileges of American citizenship. You cannot come to court and sue for anything because you're not a citizen.
9:36 Peter Shamshiri? Just a worst case scenario for a plaintiff, right? You're like, hey, aren't I technically free if I went to Illinois and the Wisconsin Territory? And Tony's like, not only are you not.
9:47 Speaker 03 Yeah. Yeah.
9:48 Peter Shamshiri? This is, this is, this is the greatest, like the, there's, there are all these doctrines that you learn about where it's like, like constitutional avoidance, right? Where the court should be restrained in the answers that they provide and the holding that they provide. This is one of the most, you know, ambitious in the literal sense.
10:06 Speaker 03 Activist court.
10:08 Peter Shamshiri? Supreme Court decisions in history.
10:10 Speaker 02 Yeah, no, this is what's really bad about Dred Scott, I think, you know? So to some extent, the badness in Dred Scott comes from a bad constitution, right? This is the pre-Civil War Constitution. We got the Fugitive Slave Clause. Slavery is protected. So some of the badness in Dred Scott is actually just coming from the Constitution. But what you're saying here about Tony reaching out to decide issues that he didn't need to decide, that's clearly the mark of an activist court that's like swinging for the fences and like, we've got this socially divisive issue of slavery and we're going to solve that problem for you.
10:40 Speaker 03 Yeah.
10:40 Speaker 02 And they tried to solve it in the wrong way.
10:42 Speaker 03 Exactly. So let's pick apart some quotes here, the language that is just about enslaved people and not just enslaved people, but black people. Tawny says, "People of African descent, quote, "are not included and were not intended to be included under the words citizens in the Constitution. They can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States." He says, "African Americans are not entitled, quote, "to full liberty of speech, to hold public meetings and to keep and carry arms." He's referring, right, to the Bill of Rights. He's saying these, these rights do not apply to black people. He describes black people, quote, "as beings of an inferior order." He concludes, "Black people are, quote, "altogether
11:27 Speaker 03 unfit to associate with the white race, either in social or political relations. Black people," he goes on, "are so inferior that they had no rights which the white man was bound to respect." Now, we do have that pesky Declaration of Independence, which does say, "All men are created equal." So what is Tawny to do here? There are some words here.
11:52 Speaker 02 And he confronts it directly.
11:53 Speaker 03 Yes, he does. He does confront it directly. He has to say like, "Yeah, that part of the Declaration of Independence, quote, "would seem to embrace the whole human family, but, quote, "it is too clear for dispute." Basically, he's saying, "No one ever intended such equality to apply to black people, whether enslaved or free." And he sort of concludes this section by saying, "By the common consent of all civilized governments and the family of nations, quote, "the Negro race had been doomed to slavery."
12:27 Speaker 02 Yeah, there are two really, really interesting things about that passage, I think. So one is he's got the framers saying, "All men are created equal." How do you deal with that? And he says, "Well, you know, if they intended to include black people in that phrase, they would have been hypocrites because they were enslaving people." So rather than suppose that they're hypocrites because they were such great people, we have to suppose that they were racists and saw that, you know, it just goes without saying. That we're not including black people as people.
12:54 Speaker 03 Yeah.
12:55 Speaker 02 But then the other interesting thing, so one is like, oh, it makes the framers look so much better to say that they're racists instead of hypocrites, which kind of tells you what Tawny values, I guess. But then the other thing is how self-consciously originalist this is.
13:07 Speaker 03 Yes.
13:08 Speaker 02 So he's saying, you know, this is how it was understood when it was drafted and ratified. We have to follow that. He gives you all of the arguments for originalism, like, public opinion can't change the outcome of constitutional cases.
13:20 Speaker 03 Yeah, social change, we don't care about that.
13:22 Michael Liroff? I'm not a big fan of Justice Tawny, but I got to, I got to admit on his, they weren't hypocrites, they're racists. At least for some of them, I think nailed it.
13:32 Speaker 02 I think that's actually true.
13:33 Speaker 03 Yeah.
13:34 Speaker 02 Yeah, I mean, I have a different understanding of all men are created equal, which is that it does apply to everyone, but it's just sort of talking about the pre-political state of nature. And it's saying, there's no divine right of kings, basically. And then, if you're a racist, you could go on and say, actually, enslaving black people is justified because, you know, we're giving them civilization and Christianity and so on, and all of the arguments that people used.
13:56 Michael Liroff? Right.
13:57 Speaker 02 So like, I think not hypocrites, but racist is actually pretty, pretty accurate.
14:00 Michael Liroff? Yeah.
14:01 Peter Shamshiri? I mean, he's, he's pointing to this tension that like, I think, almost all of us are aware of, that between the founding ideals and the practices at the founding and the laws at the founding, and he's just sort of resolving it in favor of racism, right? He's sort of just, he's identifying this very real tension and saying, you know, well, what do we do about this? We imagine that they didn't really mean all men are created equal, right? That's just the most practical way to analyze this. It's interesting to me because now when you hear this discussion about the tension between the actions and the words of the founding fathers, it's very like, left-wing coded, right? This is like, lefty criticisms of, of the, the founding. But here you have Tawny being like, no, this
14:45 Peter Shamshiri? is like, of course, these things don't go together.
14:48 Speaker 03 Exactly, exactly. Look at society. Of course, that's not true. Now, last thing about Dred Scott, because I think this is important. All of this about the rights of black people, the citizenship of black people, et cetera, like-
15:02 Speaker 03 Tawny and the Supreme Court could have decided this case only as to Dred Scott's petition for freedom, essentially, right? They could have decided this case only as to Dred Scott's claim, only as to his family, but they didn't. They make this sweeping holding that applies to everybody. And on top of that, the Supreme Court in Dred Scott rules that the Missouri Compromise itself is unconstitutional because it denies enslavers of their property. The Fifth Amendment protects enslavers, says the government can't take your property without due process of law. Well, the Missouri Compromise does this, Tawny says.
15:45 Speaker 03 And important to point out here, essentially, what the holding does, or de facto, this is a re-nationalization of slavery, where Congress had acted, at least in some way, to limit that with the Missouri Compromise. This decision sort of nationalizes the institution of slavery again. And, you know, kind of transitioning us now to the consequences of Dred Scott. I mean, are we or are we not careening towards civil war at this point?
16:15 Peter Shamshiri? Right.
16:15 Speaker 03 Yeah.
16:16 Peter Shamshiri? And it's worth noting that Tawny thought that this would alleviate-
16:19 Speaker 03 Yes.
16:20 Peter Shamshiri? Political tension.
16:20 Speaker 03 Ease tensions, yeah.
16:21 Peter Shamshiri? And so did the president, Buchanan, right? Buchanan is publicly saying, like, don't worry, the Supreme Court's going to figure this out, and we're all going to be able to move on. I think it's very telling that the Supreme Court at this time sort of believes that they are above the political fray to the extent that they can sort of resolve, quote, unquote, "this massive political issue." The definitive political issue of the prior half-century just kind of snapped their fingers, and it goes away, and that everyone will sort of treat it as having been resolved.
16:52 Speaker 03 Yeah.
16:52 Speaker 02 Yeah. Every once in a while, the Supreme Court gets this idea that it can solve the nation's problems, and very often, it doesn't work. So, you know, here, they're trying to solve the problem by appeasing the South, and they do appease the South, but there's a backlash against the decision. And it does, as Riya was saying, implicate this idea of slavery national, because if Congress can't ban slavery in the territories because it's not due process of law to take away the property of a citizen who's done nothing wrong, it seems likely that free states can't exclude slavery either, because you've got the same problem. When a slave, an enslaver, takes an enslaved person to a free state, that state maybe can't say that they're free anymore. And that's what creates this backlash.
17:36 Speaker 02 That contributes to the election of Abraham Lincoln in 1860. And that's what pushes the South over the edge. So I think Dred Scott definitely does bring on the Civil War. It's a little bit more complicated as far as the causal chain goes.
17:49 Peter Shamshiri? We are going to skip over the Civil War itself.
17:52 Speaker 03 Go read about that somewhere else.
17:54 Peter Shamshiri? Podcast episode. North winds, of course, using our superior northern brains. And that leads into the Reconstruction Amendments. So you get the 13th, 14th, and 15th Amendments, which sort of purport to protect the rights of Black people in the South in particular. Voting rights, equality generally. They are enshrining into the Constitution, civil rights laws that were passed in the wake of the Civil War. And Kermit, I think you wrote about this in your book. But a lot of what we would view as sort of like the most important Supreme Court cases in the canon, then start to flow out of these amendments, right?
18:37 Peter Shamshiri? Out of the concepts of equal protection and substantive due process in the 14th Amendment, voter protections in the 15th. And so like, in many ways, the entire constitutional order has been upended by the Reconstruction Amendments.
18:51 Speaker 02 Yeah, I like, pretty much all of our important, celebrated decisions are 14th Amendment decisions. So the thing that I think that we don't understand, that we teach really badly, is the radicalism of Reconstruction and the radicalism of the change that these bring. So for one thing, to get the 14th Amendment ratified, Congress has to wipe out 10 former Confederate states and basically make new states with new bodies of citizens and new governments. And that's how they ratify the 14th Amendment. And now you've got this massive transformation, right? The founders thought the national government is the threat to liberty and the states are the good guys. We totally flipped that, right? Reconstruction, Congress thinks that the states are the oppressors and the national government is the good guys. So we've got this incredible transformation of our Constitutional structure.
19:36 Speaker 02 And the question basically is, is it gonna stick? Because the former Confederates don't want to accept this. A lot of people think, wow, we're really shaking things up. Maybe this isn't a good idea. Maybe we should slow this down. And it turns out that basically you need the US Army there to sustain the integrated Reconstruction governments. When the US Army stands down after the Compromise of 1877, these Reconstruction governments are basically overthrown by military coups. And we can see like, what is the Supreme Court doing? We'll see as we discuss these cases. It's kind of going along with the dismantling of Reconstruction.
20:12 Peter Shamshiri? Yeah. So I guess we can start with the Slaughterhouse cases. This is the, I think, the only one of the cases that we're going to discuss that is before the Compromise of 1877.
20:21 Speaker 02 Yeah, so the Slaughterhouse cases, I think, are in some ways a lot like Dred Scott because there was a pretty simple off-ramp for the court to take. You know, I teach Dred Scott as a conflict of laws decision. I teach the Missouri Supreme Court decision in my conflict of laws class. The Supreme Court could have just followed that and said like, our conflict of laws analysis says that Dred Scott loses. But they reached out unnecessarily to sort of distort the Constitution in a way that they were trying to change it. And kind of the same thing happens in Slaughterhouse. So the background to this is there's a sanitation crisis in New Orleans because people are slaughtering animals everywhere, and in particular, upriver from the city, and then throwing entrails into the river. So you've got like cholera, you've got yellow fever.
21:04 Speaker 02 And as a pretty reasonable health measure, the government says, we're going to try to consolidate this butchering activity in a single location so that it doesn't have all of these negative health consequences. So they create a company to administer the slaughtering activity at this particular facility. And it sort of sounds like they're giving this company a monopoly, which people don't like. But actually, if you look at the law, it has to let all the butchers use its facilities. It's not allowed to discriminate against them. But still, the butchers don't like this. So they challenge the regulatory scheme that the government has set up. And it's worth pointing out, this is the integrated Reconstruction government. But a bunch of white butchers challenge it. And their lawyer, interestingly, is John Campbell.
21:48 Speaker 02 John Campbell's a former Supreme Court justice who resigned at the outbreak of the Civil War to go join the Confederacy. Right? Because that's who he is. So in part, this is like an attack on an integrated reconstruction government. In part, this is actually sort of the opening salvo of what you're going to end up seeing in the Lochner era of using the 14th Amendment to block state economic regulation. So if you ask me, like, how should this case come out? I think the Butchers should lose. I think the court actually reached the right result. But in addition to ruling against the Butchers, it kind of reaches out in this unnecessary way and just destroys the privileges and immunities clause of the 14th Amendment.
22:30 Speaker 02 So 14th Amendment, Section 1, it's got three clauses: equal protection, due process, and privileges and immunities. And if you're not a lawyer, you might have heard of equal protection and due process because equal protection gives us Brown v. Board of Education and due process gives us Roe v. Wade and cases like that. But you probably haven't heard of privileges and immunities because it gives us nothing. And the reason it gives us nothing is what the Supreme Court says there, which is that, hey, privileges and immunities, sounds like it protects a whole bunch of rights, right? No state shall make or enforce any law abridging the privileges or immunities of citizens of the United States. What does that protect? Justice Miller says it protects your access to seaports and sub-treasuries, like this
23:14 Speaker 02 list of completely irrelevant rights that no one cares about.
23:17 Peter Shamshiri? Right. Like, you can imagine that the privileges and immunities clause protects things like voting rights, the right to privacy, bodily integrity. But instead, it's sort of like, well, if you want to land in a seaport when you come back to the US, then sure.
23:33 Speaker 03 Oh, good thing. I'm glad the Constitution ensures that.
23:36 Peter Shamshiri? Well, if you want to land in a seaport when you come back, Ray.
23:38 Speaker 02 That's what the Civil War was fought for.
23:40 Speaker 03 Yes.
23:41 Michael Liroff? Access to seaports.
23:43 Speaker 02 Yeah, that's why Congress destroyed 10 former Confederate states to protect your access to the seaports and sub-treasuries.
23:51 Speaker 02 And then like there are some dissent saying, no, this is about fundamental rights. And interestingly, that that turns out to be what the due process clause ends up doing. And then there's another dissent saying this is about anti discrimination. States shouldn't be allowed to discriminate among their citizens. And that's what equal protection ends up doing. But basically here, the court is given the opportunity to say, yes, right? The 14th amendment radically changes the relationship between the states, the national government and the people. And instead it says, no, like Miller says exactly that. We don't want to accept a reading of the 14th amendment that would work this radical change. But the radical change is exactly what Congress was trying to do. And the decision, as one of the other dissent says, it turns what was meant for bread into a stone.
24:35 Speaker 02 So everyone hates slaughterhouses.
24:37 Michael Liroff? Yeah.
24:38 Peter Shamshiri? Yeah. So just to situate us, you know, you have the slaughterhouse cases, which really begins to pull back the promise of the reconstruction amendments. But what really sort of facilitates the actual end of reconstruction is the election of 1876. So Kermit, I'll, I'll let you explain that.
24:58 Speaker 02 So the, the election of 1876 is like interesting in terms of where the nation is because the Democrats are like the party of treason, basically. But in 1876, they, they come back, right? The Democrats were the party of slavery, right? Still are, all of us. It's amazing how, how American history, nothing ever changes. But so in 1876, you got Rutherford B. Hayes for the Republicans and then Tilden for the Democrats. Tilden wins the popular vote. Like the Democrats earlier were able to win the, the white vote. Now they're actually winning the whole popular vote. And the election is too close to call, so they have to come up with a commission and they're trying to figure out how to solve this.
25:41 Speaker 02 And historians sort of differ on the exact details, but basically what happens is they agree that Hayes is going to be president, but the federal troops are going to stand down in the South. And that's what really breaks the back of Reconstruction. Because for the past 12 years, the US Army has basically been fighting a counterinsurgency war. And it's been holding down the white supremacist paramilitaries and supporting the integrated Reconstruction governments. And when they stop doing that, the Democrats sweep back into power. And in a lot of cases, this is by massacres.
26:17 Michael Liroff? Right, yeah. This helps usher in an era of violence, right? Sometimes organized, sometimes disorganized. But this is a sort of political revolution that's happening on the backs of like torture, rape, burning of businesses, political assassinations, including of white Republican politicians, not just, not just black, black people. But it's, is a nasty, nasty campaign of violence to undo the Reconstruction governments and reimpose the white supremacist order that was the status quo ante before the Civil War.
26:55 Speaker 03 Yeah, and what you see happening in parallel or simultaneously are, you know, a few more Supreme Court cases that sort of, you know, it's like hand in hand with a campaign of violence, hand in hand with federal troops withdrawing from the South, hand in hand with basically giving the South the green light to reimpose a violent racial hierarchy in, in southern states. One of those cases, it's another case, or a series of cases actually, that we've talked about a few times on the podcast before. These are the Civil Rights Cases of 1883. So, you know, after the compromise, the withdrawal of federal troops from the South, there is now the reimposition of widespread racial discrimination.
27:39 Speaker 03 If the South can't have slavery, they're going to do whatever they can, get up, you know, as close as they can legally. So there's now widespread discrimination and Congress is trying to rectify things. Congress has just passed the Reconstruction Amendments. And so Congress passes the Civil Rights Act of 1875. It's huge Reconstruction legislation that entitles everybody access to a common
28:03 Speaker 03 You know, public transportation regardless of race. And that's what is at issue in these civil rights cases, which come down in 1883. It's five cases consolidated that hold that the 13th and 14th amendments do not allow Congress to outlaw racial discrimination if it's done by private parties. The Supreme Court here, striking down this legislation and saying the 13th amendment, quote, merely abolishes slavery narrowly. This is the only thing the 13th amendment does, the Supreme Court is saying. And the 14th amendment doesn't give Congress power to legislate this in this way, because these are private actors. These are individuals, these are businesses, that's not the state acting.
28:47 Speaker 03 Now, there's an important dissent by John Marshall Harlan. He says, quote, "The substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism." He's saying like, the majority here is doing semantics about how the Reconstruction amendments apply and the result, the consequence of the decision in the civil rights cases, widespread racial segregation in housing, in employment, across public life, especially in the South. This is what is given the green light by the civil rights cases of 1883.
29:22 Peter Shamshiri? And there's one thing in the civil rights cases I want to talk about. There's a quick line where black people are described as the special favorites of the law. Basically saying, look, it's been like a decade since slavery and we've given you all these benefits, it's time to move on, right? You can see this like, the immediate arrival of like, has civil rights gone too far? Right after Reconstruction begins.
29:51 Speaker 02 Exactly. You see this all through Reconstruction, actually. Like, the New York Times, over and over again, is saying, well, you know, we really supported the move for equality at the beginning, but now things have gone too far. And a lot of people think that whites are the ones who are being oppressed. So like, when you hear that nowadays, you should understand that this is one of the things in American history that never changes. Like, no matter how long it's been, no matter how much has been done or left undone, people are always saying, oh, like, we agree with you in principle, but I think you've gone a little too far at this point, right? And this is 18 years after the end of slavery.
30:24 Speaker 03 Why are you laughing, Michael? Michael was like, hee hee hee. What were you thinking about?
30:31 Michael Liroff? Sorry, I was thinking about just like the absurdity of hearing the same tired tropes over and over and over.
30:39 Peter Shamshiri? I mean, I told you guys, I was just reading in The Atlantic, a piece that about like the modern right wing, white identitarian movement that basically frames it as a reaction to the left, to the left, like the lefty identitarian movements of the 2010s. And I don't know, it's, it's just incredible to go back 150 years and see the same thing at a, at a time in history that any historian now would say, well, of course, of course they were expressly racist, of course. Like, don't be ridiculous.
31:10 Michael Liroff? Yeah, it's, it's always, no matter what point you are in history, it's always that, yeah, three decades ago, they were really racist and really white supremacist, but then that just disappeared, just in the last 20 years.
31:23 Speaker 02 This is exactly what John Roberts.
31:25 Speaker 03 Yes.
31:25 Speaker 02 Says, like in Shelby County.
31:27 Michael Liroff? Oh, for sure.
31:28 Speaker 02 Like, oh, history didn't stop in 1965. Now we've got no problem with voter suppression.
31:33 Michael Liroff? It's, it's always just happened and now it's time to move on. And then 30 years later, we're like, poof, that was way off. No, it was still going.
31:41 Peter Shamshiri? I mean, I think the current conservative position is that racism as like a problem that the government needs to address, ended in like 1984. That's like my, just eyeballing it.
31:51 Speaker 02 Yeah, except that now they're finding a whole lot of anti-white racism.
31:55 Michael Liroff? Right, right.
31:55 Speaker 02 Really aggressively going after that.
32:16 Michael Liroff? So we should talk about a couple of other cases from this era. Another very bad one that you may have heard of, even if you're a lay listener, Plessy v. Ferguson. This comes about much later in time.
32:30 Peter Shamshiri? 96, right?
32:31 Michael Liroff? Yeah. In 1896, this is a period where essentially white supremacist caste systems have been reimposed in much of the United States. And Plessy is a man who was one-eighth black and bought a train ticket in Louisiana for, I believe, a first-class train ticket. Went to sit in an all white coach. Louisiana had a law saying that the races were to be divided between coaches. There were to be all white coaches and all black coaches and no black people in the white coaches, no white people in the black coaches. Nothing unequal there. It applies just as strongly to the white people.
33:13 Michael Liroff? One of the arguments made in this case, Plessy is told to go to the black coach. He refuses. He's forcibly removed. He's imprisoned. He's fined and he argues that this is unconstitutional.
33:27 Peter Shamshiri? Racism, of course, rooted in real science. A man who is one eighth, one eighth black goes to the black car.
33:34 Michael Liroff? There's some interesting conversation in, in dicta in this opinion about how the different states define differently. Some it's like just one drop and some it's like three quarters white, you're good. But that wasn't squarely an issue, whether Plessy was significantly white passing or significantly, you know, white of blood.
33:55 Peter Shamshiri? Right.
33:55 Michael Liroff? That wasn't the core issue. Instead, the core issue was whether segregating trains like this was constitutional. And, you know, the court comes out saying it is. And, and their reasoning is pretty racist, I would say. Plessy argues at one point that if you can segregate train cars like this, why couldn't you make, you know, like white people have to walk on one side of the road and black people have to walk on the other side of the road. Maybe white people get to paint their houses white, but all black people have to paint their houses black. And the court says, well, those wouldn't be reasonable. Those aren't reasonable, but look around, there's so many other laws that are reasonable,
34:37 Michael Liroff? like laws against the intermixing of the races in marriage. That's reasonable. Laws mandating that black people be educated in different schools from white people. That's reasonable. And so too is this prohibition against, you know, mixing of races in railway cars. That's reasonable. That's sort of the heart of the opinion. It's very bracing to read. I haven't read it since law school and rereading it for this, this episode was very upsetting. There's a fair amount of legitimate gaslighting in it. Plus, he argues that separating the races like this marks the black race as inferior. It's essentially a badge of dishonor.
35:20 Michael Liroff? And the court's response is, well, we didn't say that, you said that. That's your take on things.
35:25 Speaker 02 Separate but equal.
35:28 Michael Liroff? Right, right. Just so, so obnoxious in its dismissal. Justice Harlan, again, with a very good dissent here. I mean, it has its issues. He's like, I do kind of think whites are superior, but we've decided to live in peace and equality with the, with the inferior blacks, and so we should. But he does say that this opinion is going to be remembered alongside Dred Scott as one of the worst. And I gotta say, bro, it's like Babe Ruth pointing to the left.
36:00 Michael Liroff? You called it, dude. People fucking hate this case.
36:03 Speaker 02 Plessy is kind of different from Dred Scott in that Plessy doesn't really do violence to the Constitution.
36:09 Michael Liroff? No.
36:10 Speaker 02 I think. So, you know, when they're talking about what the 14th Amendment means, they say, hey, this bans any law that is designed for the oppression or annoyance of a particular class. Where they go wrong is they look at this law, they look at racially segregating railroad cars, which, by the way, Louisiana forbade during Reconstruction. They had a law passed by the integrated legislature saying you cannot racially segregate railroad cars. Then after Reconstruction is overthrown, they get an all-white legislature and they pass this law requiring segregation. So the Supreme Court looks at this law and they're like, this is not racist, basically. This is reasonable. This is a good faith reaction to the way that things really are. And it's an 8-1 decision. So like, the legal elite at this point really does view the world through a racist lens,
36:53 Speaker 02 where this kind of thing is the natural order. Like, and that's, that's really the problem.
36:59 Peter Shamshiri? So the last case we want to discuss from this era is Giles v. Harris, which we've covered on the podcast before. Basically, starting in the 1890s, a bunch of southern states start rewriting their constitutions, their state constitutions, in order to entrench white supremacy in their laws. So Mississippi does it, South Carolina does it, Louisiana does it, Alabama does it. And in this case, Alabama rewrites its constitution. It includes a whole bunch of fairly expressly racist policy, you know, poll taxes, residency requirements, really vague, like, good character requirements.
37:42 Peter Shamshiri? All of this, like, included grandfather clauses designed to functionally exempt white people. And the president of the Constitutional Convention is being very open about this, saying, like, the goal of this is to establish white supremacy in the state. And the court doesn't say that this is constitutional. In fact, they seem to believe that this is probably all unconstitutional. But what they say is, look, this can't really be remedied by the courts. The opinion is very sort of bizarre to read. The sort of key reasoning is that if the court were to ask for a remedy here, that they would be sort of making themselves part of this illegal scheme.
38:26 Peter Shamshiri? This sort of bizarre view of what it would mean to remedy an illegal scheme, as if requesting that someone fix an illegal scheme is somehow involving yourself in that illegal scheme. But lurking behind the decision is a sort of like, well, we've gone too far here, right? The redemption is on and reconstruction is well over. And were the court to...
38:52 Peter Shamshiri? Say, hey, no, you need to amend these constitutions. That might force a political confrontation that the court doesn't have the teeth to back up. And I think if we're taking a step back and we're trying to parse out exactly what role the court played in the depth of Reconstruction. They're obviously not the primary driver, but they aren't entirely passive either. Right? You have them striking down acts of Congress that would have prohibited private discrimination. We wouldn't see federal laws like that for almost 100 years. The way I think about it is that the court during this time was acting like a pressure release valve for post-Civil War political pressure on the South.
39:36 Peter Shamshiri? And they helped to slowly turn that pressure down to the point where Reconstruction just sort of slowly fades away. And I don't want to write the compromise out of history, which of course is sort of the pivotal point. But at various points, the court could have maintained this political tension. They could have said, yes, the South needs to do something about segregation. The Southern states need to reform their voting systems. And that might have forced a political confrontation between the North and South. But they were instead very conciliatory toward the South in nearly every case. And we don't get that confrontation until the 1950s, in essence.
40:16 Michael Liroff? Right. Yeah, they might not be the drivers of, you know, the reentrenchment of white supremacy in the South, but they were at best cowards in the face of this onslaught and at worst actively aiding it.
40:30 Speaker 02 Oh, yeah. No, in some cases, they definitely are aiding it. And, you know, they're saying things that people can rely on in political discourse as well. So when they say it's time for black people to stop being the special favorite of the laws, that carries on out into the political branches.
40:45 Michael Liroff? They act as a legitimating force for what's going on here, when they behave this way.
40:51 Speaker 02 Yes.
40:52 Michael Liroff? You have all this like extralegal violence happening in the South. But then at the court, you're hearing, you know, we, maybe we shouldn't be doing stuff like this. And that gives a patina of... Legitimacy to the political project of the quote unquote redeemers. I hate that name because it's too nice.
41:09 Speaker 02 Yeah, you know, in a lot of ways, that reminds me of what's going on now. I would say that's kind of what the Supreme Court is doing now. Where you've got this wildly brazenly lawless activity by the administration. And then the Supreme Court is like, well, you know, I think the executive is irreparably injured. If they can't implement the policy that the American people elected them to do. So we're going to leave this in place.
41:29 Michael Liroff? Right.
41:30 Speaker 02 You know, for a couple of years while we consider it, even though it's obviously lawless on its face.
41:34 Michael Liroff? I think that's right.
41:34 Speaker 03 Yeah, yeah, you see like where the institution itself, like this entrenchment on what side of the pressure valve? It's going to pull the lever on definitely worded that really weird in terms of the mechanics of using a pressure valve. But but I think everybody understands. And what I'm saying is like Peter said, the Supreme Court in the reconstruction era is using that pressure valve to relieve the pressure on southern states. But it could be releasing pressure on black people, on formerly enslaved people, on an underclass that is being sort of reified and reestablished. It could be releasing political pressure the other direction. And and of course, that's the same today, you know?
42:15 Speaker 03 But you see where it's sort of, you know, what I would I consider to be sort of structural endemic institutional entrenchment on one side of how they view political pressure and their role in relieving political pressure. That it's going to come down more often than not on relieving political pressure for the establishment of racial hierarchy or the reestablishment and the perpetuation of oppression, let's say.
42:37 Michael Liroff? Yeah.
42:37 Peter Shamshiri? There's an interesting sort of contrast here because in both Dred Scott and in these redemption era cases, you have the court sort of believing that its legitimacy will cut through the politics, that it can basically rule on these very contentious issues. And the political actors will sort of fall into line and the political institutions will fall into line.
43:02 Speaker 03 Mm hmm.
43:03 Peter Shamshiri? And you can see where that hits a wall in Dred Scott, right? Where the politics are just too big and the institutions are not ready to play ball. And these conflicts are just much bigger than the court. And so, you know, you have Buchanan basically saying, well, the Supreme Court's going to handle all this. And we can all move on and being extremely wrong, as wrong as any president has ever been. And On the other hand, you have political dynamics post compromise of 1877 that sort of favor a conciliatory approach toward the South. Because the other option over time steadily and steadily becomes another war. You're sort of confronted with, well, is there really going to be another civil war? Or are we just going to sort of give them what
43:48 Peter Shamshiri? they want and move on? We can't maintain this tension forever. So the court takes this trajectory of appeasement. And it kind of works, at least for some period of time, you know, works in the sense that the other political institutions were not ready to fight it.
44:02 Michael Liroff? To that point, like, the actual dismantling of Jim Crow and integration required federal troops in the South to enforce it. The feds had to go back to the South like they had in during Reconstruction and make them integrate. So, yeah, there is some question of whether there was the will or appetite for that in the 1880s, 1890s, early 1900s.
44:26 Speaker 03 When we talk about this era, when we talk about the Reconstruction period, you know, we talk a lot about like, the Supreme Court's role in then what comes after Reconstruction, which is Jim Crow, full on. And we talk a lot about how, you know, to what degree did the Supreme Court play a role in greenlighting that, in ushering in Jim Crow, in creating the conditions at least in which, you know, the South could in earnest create this kind of system. So I just wonder, like, what you think about the degree to which the Supreme Court, you know, how big was the role the Supreme Court played in that?
45:00 Speaker 02 Well, I think the Supreme Court's role was pretty big in some ways, in that it is playing this legitimating function. It is relieving tension that might otherwise lead to progress in the direction of racial equality. But I think it's also important to understand that, like, the Supreme Court here is pretty much doing what it's supposed to do, I think. So you know, you've got Supreme Court justices who are basically representing the political coalition that appointed them. You got a whole lot of Republicans on the court at this point, but the Republican will to support Reconstruction has gone. And they're not doing it. And a lot of these decisions are pretty lopsided. So Slaughterhouse, that's five to four. But Dred Scott is seven, two. The Civil Rights Cases is eight, one. Plessy's eight, one.
45:45 Speaker 02 And what the court is doing here is really sort of representing elite consensus. It's representing what the national powerful people want. And you know, as long as the Supreme Court is doing that, that's kind of what it's supposed to do in our constitutional scheme, I think. Like, I get really upset about the current Supreme Court because I think it's out of step with a national majority.
46:06 Speaker 03 Yeah.
46:07 Speaker 02 A lot of what's going on in Reconstruction is just, that's what America wanted, like, the people in power, at least. We wanted to give up on racial equality. We wanted reconciliation. The Supreme Court is helping that along. Like, now I think it's really bad what the Supreme Court is doing. It's going against the majority of Americans because the appointments process has given us a court that's way out of line with national popular sentiment as reflected in presidential elections. Like, the Reconstruction Court, the Plessy v. Ferguson Court, for instance, is exactly where it should have been if each president gets to appoint two justices per four-year term, which is what I think the system should be, right? Now, we're way off of that, and that, I think, is why our current Supreme Court looks political and extreme.
46:49 Speaker 02 But, you know, in Reconstruction, they're kind of doing what the powerful people want, which is what the court does. Oliver Wendell Holmes, right, who's the author of Charles B. Harris, says, "I am a supple tool of power." That's what judges are.
47:00 Speaker 03 Oof. I don't want to say something really inappropriate.
47:05 Speaker 02 No. Look, he shouldn't be saying "supple" in the reporter. I'll just say that.
47:10 Michael Liroff? Oliver Wendell Holmes also thought that the Southern white man was genetically inferior.
47:17 Speaker 02 Hits and misses with Oliver.
47:18 Michael Liroff? So he had some good ideas.
47:20 Speaker 02 Oliver Wendell Holmes fought in the Civil War and, you know, got shot twice. And I think that's kind of in the background of his opinion in Charles V. Harris, because he knows what it takes to make the South do what you want. And he's like, "When I was on the battlefield, maybe I had a shot at that. Now I'm in the Supreme Court just writing an opinion. I can't do it. I need the US Army."
47:40 Michael Liroff? Yeah. Yeah. I mean, I do, I think there's something to that. I mean, you could argue, I think, that they could have at least been the better angels on the shoulders of the elite and been like, "You know what you're doing here is abandoning this project."
47:54 Speaker 02 That's exactly the point about the tension release, right? Because if the Supreme Court says this is unconstitutional, if the Supreme Court upholds the Civil Rights Act of 1875, which wasn't being enforced very much, but if they're like, "Yes, Congress can do..." Then there's still conflict and the conflict can move in a good direction. But instead, the Supreme Court is saying, this is fine.
48:11 Peter Shamshiri? Right.
48:11 Speaker 02 This is the way things should be.
48:13 Peter Shamshiri? And the way that the Supreme Court acts, there is sort of no one speaking up for the real material validity of the Reconstruction Amendments, or at least all of the Reconstruction Amendments, right? You have a sort of political system that basically subjugates them to various other principles, largely non constitutional principles. In Plessy, equality, which is explicitly called out in the Fourteenth Amendment, equality under the law becomes subjugated to like some sort of vague idea of reasonableness, or something like that. You have this sort of almost century long period where no political institution is taking the Reconstruction Amendments particularly seriously.
48:55 Michael Liroff? You can't talk about this time period and not think about what could have been, right? If the political will had maintained, if there hadn't been a violent overthrow of the Reconstruction governments in the South. And I do think, if we're thinking about America 250, that's something that should be on your mind, listener, about different points of history, how things could have gone differently. But I do think that relates a little bit to Kermit, your book, The Nation That Never Was. Maybe you can talk a little bit about your thesis there. I think you more focus on the national mythos and how we view American identity. But I think that it relates very well to what we're talking about here.
49:39 Speaker 02 Yeah, so I have two ideas there. The first, which is the basic idea of the book, is we really underplay Reconstruction and we overplay the Founding as the source of our American values. So the idea of equality that's there at the Founding, I think this is true about the Declaration, maybe people disagree. It's very clear about the Constitution that's written in 1787, and really, no one disagrees about this. There is no idea of equality as a national value that we are committed to as a nation, no matter what the states want. There's no idea of democracy as a national value that we are committed to, no matter what the states want. All of that comes about through Reconstruction. It comes about basically because black people
50:22 Speaker 02 fight in the Civil War and that gives them a path to citizenship. And once they're citizens, their rights have to be protected. That's why we need the 13th, 14th, and 15th amendments. And this really changes both the constitutional structure and our sort of self-understanding. Because it's Reconstruction that makes us into a nation rather than a union. And a nation that has certain values that the states have to follow, no matter what they want. Now then, right, we lose Reconstruction. We have this thing called redemption, where the white supremacists take back power. We have Jim Crow and segregation. And how could things have been different? I think it's a really interesting question. You know, one answer is, well, the American people should have had more fortitude in
51:05 Speaker 02 the 1870s and stuck with it. Another answer might be the Supreme Court should have stood up more for the principles of Reconstruction. But honestly, I think the realistic thing is we should have treated the Confederates differently after the Civil War. Because we had a really divisive war before, and one-third of the American population maybe was on the wrong side, and that was the Revolution. But the loyalists didn't cause us a problem afterwards, because we drove a lot of them from the country, and we took their property and we distributed it to loyal people. And we kind of wrote them out of the American story. So no one said, hey, loyalists, your perspective is valid. You fought for what you believed in. We're going to take you back. You can be one of us again.
51:50 Speaker 02 But we did that with the Confederates, right? We did exactly that. And they were one-fifth of the white population. They were a smaller percentage than the loyalists at the Revolution. But instead, we were like, welcome back. You're not traitors. You fought for what you believed in. You did what you thought was right. And maybe you are the real Americans. Now, like, part of my thesis is, they kind of are the real Americans, because they're standing in the shoes of the signers of the Declaration of Independence. They're declaring their independence, right? They're fighting the national government, just like the Patriots did. But in Reconstruction, we made a choice against that vision of America. And that's what we need to see, that the Confederacy really was illegitimate, that this is something we've turned our back on.
52:31 Speaker 02 Accepting all of them back, giving them political power again, allowing for this sort of pride in history as a legitimate thing, that, I think, has really harmed our ability to fulfill these values of equality.
52:46 Michael Liroff? I think that's right. You're speaking, you're singing my song here.
52:50 Peter Shamshiri? And you've convinced me, people in the South shouldn't vote at all. Forget the voting.
52:57 Peter Shamshiri? You have to break a few eggs to make an almond, folks.
53:00 Michael Liroff? No, but we are, I mean, we are living in an era where, you know, it's been 130, 150 years and one of the political parties essentially represents the ideals of the Confederacy in a very real sense.
53:13 Speaker 02 They absolutely do. They absolutely do.
53:15 Michael Liroff? Bringing them back and legitimating them again in the body politic has been disastrous for the country. And it's time to make up for lost time and finally expel them from the American soil.
53:30 Peter Shamshiri? Yes, spiritually or whatever. All right.
53:32 Michael Liroff? Sure, spiritually, yes. Metaphorically speaking.
53:35 Speaker 02 Exorcise them.
53:36 Michael Liroff? Yeah.
53:36 Peter Shamshiri? Well, Kermit, thank you for joining us. We appreciate your time. We didn't tell our listeners this, but you are moving tomorrow and also canceled your child's dentist appointment to be here. That's the kind of commitment that we expect, but we still appreciate it.
53:51 Speaker 02 Got my priority.
53:52 Speaker 03 Thank you so much, Kermit.
53:54 Michael Liroff? Thank you so much.
53:54 Speaker 02 No, thanks. Thanks for having me. I'm a huge fan.
53:56 Speaker 03 We really appreciate it.
53:57 Michael Liroff? This was so much fun. Yeah, thank you.
54:06 Michael Liroff? Five to Four is presented by Prolog Projects. This episode was produced by Alison Rogers. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.
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