We the People, Redefined

When the 14th amendment was ratified after the Civil War, it redefined what it meant to be an American. Today on the show, we bring you the story of how the 14th amendment was created, and the intention behind equal protection for all. To access bonus episodes and listen to Throughline sponsor-free, subscribe to Throughline+ via Apple Podcasts or at plus.npr.org/throughline. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

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  This is America in Pursuit, a limited run series from Throughline and NPR. I'm Ramtin Arablouei. Each week, we bring you stories about life, liberty, and the pursuit of happiness in the US that began 250 years ago. Since we started this series, there's one thing that's remained consistent in each episode: the rights to those pursuits were not granted or guaranteed for everyone. And while the Emancipation Proclamation and the end of the Civil War marked a major turning point for granting some rights to Black Americans, there were still a lot of unanswered questions about what would come next.

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  What is going to happen to nearly 4 million African Americans who had been enslaved in the South? Are they going to have basic rights? Are they not going to have basic rights?

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  The 14th Amendment sought to put those questions to rest and clarify, once and for all, who was considered an American and what kind of rights Americans should have.

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  Well, the 14th Amendment is a charter of basic rights. And in trying to give basic rights to African Americans, the 14th Amendment gave basic rights to everybody.

• 1:34Speaker 01

  But in the aftermath of the Civil War, not everyone was on board with this revision of who had access to what rights. Today on the show, how the 14th Amendment redefined who was American and the story of the people who fought to ratify it. That's coming up after a quick break.

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  President Abraham Lincoln delivers his last speech just days after the end of the Civil War in April 1865. He's standing right outside of the White House.

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  We meet this evening not in sorrow, but in gladness of heart.

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  Slavery had been abolished, and nearly 4 million former slaves were freed. People were eager to hear what he planned to do next. Lincoln says he'd like to extend some rights to newly freed Black people.

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  I would prefer myself that it were now conferred on the very intelligent and on those who serve our cause as soldiers.

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  He's advocating for, of course, black citizenship and certainly voting rights, at least for those who fought for the Union. And there are a lot of former slaves and free blacks who had fought for the Union.

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  But the very mention of that idea, black men, just men voting, black citizens, it ruffles feathers, including the feathers of a man in the crowd listening to Lincoln's speech that evening, a man named John Wilkes Booth.

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  Three days after hearing Lincoln's speech, Booth shoots Lincoln in the head, killing him.

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  Lincoln is really killed for voting rights, for citizenship rights.

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  This is Vernon Burton.

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  I'm the Judge Matthew J. Perry, distinguished professor of history at Clemson University. I have co-authored a book, Justice Defered: Race in the Supreme Court.

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  He's going to be one of our guides telling us this story. The other is legal historian Kenneth Mack.

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  Professor at Harvard Law School and also a professor of history at Harvard University. I've written a book called Representing the Race: The Creation of the Civil Rights Lawyer.

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  The Fourteenth Amendment is a reaction to what came after Lincoln's assassination.

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  What came after is Andrew Johnson, Lincoln's VP, who gets sworn in as president. And it's Johnson's job to pick up the presidential baton and put a fractured nation back together.

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  We kind of think of, please surrender, the war is over. No, the war continues.

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  After the final battles of the Civil War had ended, the violence continued, especially for black Americans.

• 6:09Speaker 02

  For instance, there was the Memphis riot of 1866. There were clashes between African-Americans and police officers in Memphis, Tennessee. Forty-six black people were killed, 89 other homes were burned. Wow. There was lots of reaction to black people organizing politically. You know, a couple of years earlier, they had been enslaved, and now they're organizing politically to be equals to white people, politically. So there was the New Orleans riot of 1866, in which a mob attacked a group of African-Americans who were gathering in advance of the Louisiana Constitutional Convention, and the mob killed

• 6:54Speaker 02

  35 of them. Wow. So these things were not uncommon in the years after the Civil War.

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  Former Confederates are just rampaging, killing black people. In rural areas, a lot of black leaders were murdered, teachers, as well as even ministers. And churches burned. I mean, it was... People in the United States seem to think that terrorism began with 9/11 in the United States, but African-Americans lived in a terroristic society.

• 7:26Speaker 02

  And Johnson is doing nothing about this. And at the same time, Congress is trying to do something about it. Congress is trying to pass legislation to help black people in the South. Congress passes something called the Freedmen's Bill, right, to establish the Freedmen's Bureau to aid black people in the South. Congress passes the Civil Rights Act of 1866, which would make black people into citizens and protect their basic rights. And Johnson vetoes them. Wow. Johnson claims that the Civil Rights Act of 1866, which is supposed to give African-Americans equal rights to white people, is discriminatory against white people.

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  That it's some kind of special privilege for black people to give them equal rights to the rights that white people had.

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  Can you talk about who Andrew Johnson was and what he did, how he picked up or didn't pick up the mantle of Lincoln after he was assassinated?

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  Johnson was from Tennessee. He was just anti-class. He was anti-the elite who he thought were sort of running the South and taking them into a war that there was should not have been in.

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  And as president?

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  Johnson is just ignoring the basic conditions of black people in the South.

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  Just before Andrew Johnson was vetoing legislation that would have enshrined equal rights for black people into federal law, states were passing what were called "black codes," laws that severely policed black people's lives. Limitations were placed on the right to own property, to marry freely, and to testify in court, and to push black people into labor contracts, contracts that, if broken, were subject to punishment by police and state militia.

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  Some of them just substituted in their slave codes the word "freemen" for slaves. Some of them even even made it illegal for white people to treat blacks as equals and punish them as well.

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  It's clear after the Civil War that the only way that African-Americans will get basic rights in the former Confederacy is if there is some national constitutional rights that applies everywhere and applies against the actions or the inactions of the states.

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  At the time, if a state passed a super discriminatory law or actively looked the other way when, say, lynchings happened, there was nothing in the Constitution that explicitly let the federal government say, "Hey, state, you can't do that."

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  The assumption behind the Constitution originally was that, you know, states would protect the rights of their citizens. We didn't need the US Constitution to protect citizens from the actions of their own states.

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  So Congress set out to do something totally new with the 14th Amendment. Protect black people by legally recognizing them as citizens with certain rights. It's all laid out in the first sentence.

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  All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.

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  No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law.

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  Nor deny to any person within its jurisdiction the equal protection of the laws.

• 11:18Speaker 01

  To me, this seems like such a, like a radical assertion of federal power. Like, given where the balance of power was up to that point. And it says something in its second sentence, clearly speaking to that moment, which is, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." So, I mean, they're basically saying no state can make a law that takes away someone's rights and privileges.

• 11:47Speaker 02

  Yes, the 14th Amendment is doing something that the original Constitution didn't do. You know, it's applying basic rights to states. So it's trying to say there's something called privileges or immunities. And those privileges and immunities will apply all over the United States. No matter what state you're in, no state or no local government can take away these privileges or immunities, which is something that the original Constitution did not do.

• 12:22Speaker 01

  If you took that, like, let's say you, an alien came to Earth like in 300 years after, you know, humanity's gone, finds this engraving of the 14th Amendment. How would they understand that this was about newly emancipated black Americans in the southern US? Because it's so ve-- like, what I'm really asking about is, why the vagueness of this language?

• 12:45Speaker 02

  Yeah. Well, the 14th Amendment is a constitutional provision. So, Congress goes to write a constitutional amendment. They can't just say, "You will give black people equal rights to white people." So, the Constitution has to have principles. So, that's why the 14th Amendment has very broad principles. But it's also got things that are very specific. So, "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." That is a direct response to the US Supreme Court's ruling in Dred Scott.

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  The infamous Dred Scott case of 1857. Scott was a formerly enslaved man who moved back to Missouri, a slave state, after living freely in the North. There, he sued the state, claiming that his residence in a free territory made him a free man wherever he was. The case eventually moved to the Supreme Court.

• 13:50Speaker 02

  Which held that black people could not be citizens of the United States or of any state. So, the first part of the 14th Amendment is directly overruling Dred Scott, but it's also establishing a principle. Because the original Constitution does not define who's a citizen.

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  Everything changes with this new definition of who is considered an American and who is protected under that provision.

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  So, now the federal government is supposedly--

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  Over the states. The states are subject to the federal government.

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  This was a really big change.

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  It is a total reshifting, a different direction for the country because it reorders the state and federal government relations.

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  Of course, it's one thing to draft an amendment and another to ratify it. In order to ratify an amendment, Congress and individual state legislatures must vote to approve it. And this amendment, it was really pushed forward by the political party in charge, the Republican Party.

• 14:55Speaker 02

  The Republican Party, of course, was the party of anti-slavery. Lincoln gets elected as the Republican president. So the Republicans were the forward-leaning party with regard to slavery and with regard to black rights.

• 15:11Speaker 01

  I want to talk about a group of people who are involved in this that I don't think most Americans even would understand the term when we bring it up, which is the radical Republicans. Who were the radical Republicans? And what was their response to all of this violence and to Johnson's kind of resistance to any kind of the reforms they were trying to push through?

• 15:31Speaker 02

  The radical Republicans are the ones who really were in favor of black equality. They wanted something very much done about inequality in the South. They wanted the former Confederate states reconstructed to bring about equality.

• 15:52Speaker 01

  Over the course of the 1860s, the radical Republicans in Congress passed three major post-Civil War amendments. The 13th Amendment, which said there could be no slavery in the US. The 14th Amendment, which, among other things, grants birthright citizenship and the promise that states can't take away the rights of US citizens or deny equal protection under the law. And the 15th Amendment, which said that the right to vote couldn't be denied because of one's race or previous enslavement. All three are a direct reaction to the Civil War and what was going on in the formerly Confederate South.

• 16:31Speaker 02

  You know, the first thing that the new Congress does is it moves to exclude the people who had been elected to Congress who had been in rebellion. The Fourteenth Amendment would have never passed Congress had the former Confederates been seated in Congress.

• 16:47Speaker 01

  They also do something else, just to make sure the amendment will get ratified.

• 16:52Speaker 02

  So the Republican Congress passes a thing called the Reconstruction Act of 1867, and it finally, kind of, it's kind of overruling Andrew Johnson's policy and setting its policy towards the formerly rebellious states. And in order to come back into the Union, they have to set up new governments, they have to write new constitutions.

• 17:16Speaker 01

  State constitutions, which Congress declared needed to be voted on in elections that included Black men as voters. The Reconstruction Act of 1867 divided the Confederate states up into military districts, required that a new government be elected by male voters of all races, and sent in federal troops who provided protection for Black men heading to the polls.

• 17:43Speaker 05

  It was one of the most dramatic moments ever, I think. You have going en masse African Americans to the very place at the courthouse where many had been whipped or their families sold, casting their ballot. What an extraordinary symbol of this new positive liberty of democracy. Those constitutions have been the most progressive that the former Confederate states ever had, and maybe some of the most progressive, in fact, the United States, any states have.

• 18:12Speaker 02

  So it's Black people and Black voters who are key to getting the Fourteenth Amendment ratified, because they finally can vote when the Fourteenth Amendment goes to the states.

• 18:27Speaker 01

  The Fourteenth Amendment has shaped all of our lives, whether we know it or not. So many major Supreme Court cases have been built on the back of the Fourteenth Amendment. Roe versus Wade, Brown versus Board of Education, Bush versus Gore, plus other cases that legalize same-sex marriage, interracial marriage, access to birth control, they all came down to the Fourteenth Amendment. And it was ratified at a time when the country was rethinking who was an American and what kind of rights all Americans should have. At a time when rights and the protection of those rights were not a given, but fought for with the ratification of the Fourteenth Amendment by Black voters and radical Republicans determined to redefine what it meant to be American.

• 19:25Speaker 01

  That's it for this week's episode of America in Pursuit. If you want to hear the full-length episode about what happened after the Fourteenth Amendment was ratified, check out the full-length Throughline episode, The Fourteenth Amendment. And be sure to join us next week when we dive into the story of Frederick Douglass, who dedicated his life to getting Black men the right to vote.

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  He said, "Natural rights are like the air you breathe. They belong to no one group, no one person, no one country. They belong to everybody." And the right to vote to Douglass, in something called a republic, if it could ever live up to those trees, was the most sacred right of all.

• 20:03Speaker 01

  That's next week. Don't miss it. This episode was produced by Kiana Moradam and edited by Christina Kim, with help from the Throughline production team. Music, as always, by me and my band, Drop Electric. Special thanks to Julie Kane, Irene Noguchi, Beth Donovan, Casey Miner, and Lindsay McKenna. We're your hosts, Ramtin Arablouei

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  and Rande Abdel Fattah. Thank you for listening.

• 20:47Speaker 03

  Stay tuned for the following announcements and messages from our sponsors. This message comes from Liv Right, publishers of John U. Bacon's New York Times bestseller, The Gales of November, a chronicle of the S.S. Edmund Fitzgerald's 1975 shipwreck. The Gales of November in paperback wherever books are sold.