HH: This is the last hour of the radio week, and that means it is time for the Hillsdale Dialogue. And many of you always say you look forward to this with a lot of anticipation, and throughout the west where roads are clogged with storm-weary travelers, and the power is out in many places and you’re using your battery-operated radios, probably this week more than others. And it’s a great week, because it’s a week that’s going to fill in a lot of gaps in my knowledge, because on April 15, 1865, the great Abraham Lincoln was shot and killed, and the country thrown into an absolute era of chaos in the middle or at the end of a war and at the beginning of a post-war era that very few people knew about. And this Hillsdale Dialogue, I’m joined by Dr. Larry Arnn, president of the college, and a young professor at Hillsdale, Adam Carrington. Professor Carrington is in fact finishing his first semester at the college, and he is an expert in Reconstruction. Professor Carrington, welcome to the program. How did the first semester go?
AC: Well, glad to be here, and it’s gone very well. It always helps when you have great students and colleagues. So I, any faults of the semester was perfectly my own.
HH: But you’re sitting there next to the lord high of the campus, and I would consider him a great burden to have to carry around on my back. And so that’s great for you to come in and do that. Now you have to walk very gently through this hour of the radio with him there. If he gets anything wrong, will you correct him?
LA: He has a split infinitive in his notes. (laughing)
AC: No, no, no, I’ll wait until tenure, and then I’ll just go wild.
HH: All right, let’s begin with what happens in sort of the immediate aftermath of the assassination. Andrew Johnson, the vice president, is not really, and I’ll throw this to you, Larry, and then come back to Professor Carrington. Johnson is not really in the mold of Lincoln at all.
LA: No, he more or less tried to do what Lincoln, what he thought Lincoln would try to do. And they ran over him. They came within one vote of impeaching him and removing him from office. And that is to say his own party, the Republican Party, which had a very good election in 1866, then they had the votes to do what they wanted to. They had a veto-proof majority, and he wanted, you know, these words, we have to define what these words mean, but he wanted a moderate reconstruction. And the newly-elected Republican Congress were dominated by people who wanted a more vigorous reconstruction.
HH: And Professor Carrington, in the notes you sent me, you talk about two reconstructions, which was very helpful, the first, the Andrew Johnson reconstruction, which lasts just 1865-1866, and then the near decade of radical Republican reconstruction. I’m curious, though, the extent of the devastation, not merely the political rending that occurred, but the physical rending in the country. How bad was it?
AC: Well, the South, it was unbelievably devastating. You have a destruction of one, the labor system with the demise of slavery. You have Union armies which you know, I know your love for Ohio, Ohio generals tended to ravage the South between Sherman, Grant and Sheridan. And the economy, the spirit, much of it is obliterated in the South. Now to be honest, the North suffers, of course, tremendous casualties, but really comes out economically doing pretty well as far as money, supplies. War in some ways was lucrative there. But in the South, it was great, great devastation due to everything.
HH: Did famine and disease stalk the land? I know we see the pictures of Andersonville and the terrible atrocities there because they just didn’t have any food. But after the fighting stopped, was there hunger and disease everywhere?
AC: In the South, at least for the first two years, there was pretty widespread…in fact, there was a large amount of relief collections taken up in the North to actually subsidize not just the freed slaves, but also even poor whites in the South who were destitute at that point. Now things turned around fairly quickly, at least for the plantation owners, but at least for the first two years, it was pretty bleak.
HH: There is also at this moment, and I teach this every year in Con Law, a huge break with the past in the form of the 13th, 14th and 15th Amendments to the Constitution, probably the most significant amendments that we have had. Some could argue women’s suffrage, perhaps, or others, but those are natural progressions of where natural rights would go. But Larry Arnn, those three amendments really do upend what the framers had intended. They do so for good reason, but they do change things.
LA: Well, it’s a controversy whether they upended or completed what the framers were doing, because on one level, all they did was say that the purposes of the Declaration of Independence are to apply to everyone as regards to state actions. And so that would be a completion of the Declaration of Independence as Abraham Lincoln so often said.
HH: Except they came after Marbury V. Madison, where their interpretation would be given to a court that could read much into their ambiguous phrasing.
LA: Yeah, and that’s right, and you know, the 14th Amendment was not written by the founders of the United States. A Congressman named Bingham was the chief agent. And maybe it wasn’t so well written, but it’s for sure that it can be read in a way to require things that the South was not ready to accept. And it’s worth stating what seems to me the central problem of Reconstruction, and it’s put by Abraham Lincoln in 1854. He says in the Peoria speech a universal feeling, whether well or ill-founded, cannot be safely disregarded. And so these people in the South, the slaves, had been slaves. And now they’re to be equal citizens. And many people don’t want that. And so you’re in a system now, you’ve got the problem, and it’s just a principle problem, what if a free people in control of their government wish by large majority to do a bad thing? Because then, you’re either going to let them, or you’re going to place the government in a position to force them.
LA: But we know from the geometry, the Euclidian logic of James Madison, that a government strong enough to do that is strong enough to do evil itself. And so that problem is very deep.
HH: And Professor Carrington, for the benefit, we have some fast and smart people who love these hours every week, and then we have some slow and lumbering people, and they are Steelers fans. But let us focus for a moment on the 13th, the 14th and the 15th Amendments. Would you summarize for the audience what they hoped to accomplished, what they say they’re going to do?
AC: Sure, the 13th Amendment, which is ratified in 1865 and is the center of the Spielberg Lincoln movie is pretty simple. It says that slavery in all forms of involuntary servitude are banned. What then happens, though, is the question becomes is merely banning the existence of the institution of slavery enough, especially given what Dr. Arnn was saying about the tendencies of certain parts of the country to still be antagonistic toward the freed slaves? And what then comes is the 14th Amendment. And the 14th Amendment has three main clauses in its first section that become important in Reconstruction, and two of which are very important still today. The first is the fact that states are not allowed to abridge the privileges or immunities of United States citizens. Then the two big ones that we still know today are that they cannot, states again cannot deprive persons of life, liberty or property without due process of law. And then finally, also, states must protect, give equal protection of the laws to all of its citizens and all persons.
HH: And the 15th is the right to vote, and we’ll come back to that. But I wanted to note at least in the jurisprudence of Clarence Thomas and other places, the privileges or immunities clause is making a comeback. But what happened to it? It was disfigured almost immediately by the Supreme Court of the United States.
AC: It absolutely was. The very first time the 14th Amendment comes up before the Court is an 1873 case known as the Slaughterhouse cases that had to do with certain monopolies for slaughtering in Louisiana. And you know, I won’t get too much into the nitty gritty of that, but what they end up doing is asking the question well, what are the privileges or immunities of citizens of the United States? And the majority defines them very narrowly, basically says well, there are privileges or immunities of United States citizens, and there’s privileges or immunities of state citizens. And oh, by the way, almost all of your fundamental rights, really all of your fundamental rights, are privileges or immunities of state citizens, and therefore are not covered by the amendment, and are only left to the states to defend. And there’s a justice in dissent in Slaughterhouse, Justice Stephen Field, who is a Lincoln appointees, who I’ve happened to do some work on. And he comes back and says something similar to what Dr. Arnn said. He says that’s foolish. Why did we pass it if that was the case? No, what’s really happening is, and he says this directly, why did we pass the 14th Amendment? It was to make the principles of the Declaration of Independence applicable to the states, where the states now are federally required to actually protect life, liberty and property.
— – – — –
HH: As we said in the first segment, Dr. Carrington is an expert in this area. Dr. Arnn and I know a little bit about it. And in fact, it went awry. It went terribly awry. But what’s hard for me to understand is when the Court botched this reading in the 14th Amendment, Dr. Carrington, why didn’t the radical Republican rise up and say no, because if they were genuinely radical, and if they genuinely shared Lincoln’s vision, they would have understood that that was a cramped and wrong vision. Justice Field was right. Where was the Congress?
AC: That’s a very good question. And I think part of it has to do with understanding the dimensions of the Republican Party at the time, that while the radicals were a large proportion of the Republican Party, they were not a significantly enough one to constantly be passing new amendments. And when this happened on the courts, they really were not able to push back in the way that they thought. And one thing is the Court sort of let this go slowly, because one thing I think that the Congress thought is well, we have the due process clause and the equal protection clause. And it wasn’t until later, the middle 1870s, early 1880s, that those parts of the 14th Amendment were also severely restrained in how they could protect the life, liberty or property particularly of the freed slaves. And at that point, Reconstruction has basically ended, and with the rise of the Democratic South again, it becomes basically impossible to try to legislatively correct those problems.
HH: All right, now what’s interesting about this is, and Dr. Arnn, as you said a few weeks ago, the Dred Scott case, the most infamous of all Supreme Court cases, basically brought on the war. And Lincoln said that as well. And then the Supreme Court punts away a large part of its meaning. When did the American people resign themselves to this understanding of the Court being able to do such things?
LA: Well, you know, the answer is they never have, right? There’s still lots of protest about court cases. And court cases when they’re very controversial, they tend to be, where there’s a political balance, that means that they can’t be undone. And the courts are reluctant, generally, to overturn things like were overturned in the Dred Scott decision. You know, I mean, I think the best evidence is John Roberts was very unwilling to do what Taney did by slim majority, and overturn the whole platform of the Republican Party, which is what Taney did. And Roberts was unwilling to, certainly not eager, to overturn Obamacare.
LA: But let me say something about that case, because the details of the case highlight the problem. There are those three clauses – privileges or immunities, due process and equal protection. There’s a scholar named Michael Zuckert, who I studied with, he teaches at Notre Dame now, he writes that those three things should be read as addressed to each of the branches of government. And privileges or immunities would be the one that was addressed to the legislature, and equal protection to the executive, and due process to the courts. And it sort of took the legislature out of it. But you should think about why, because what that case was about down there was there’s a bunch of guys running slaughterhouses just up the river from New Orleans, and the byproducts of the slaughterhouses was getting into the water supply. There was cholera outbreaks. And so Louisiana passed a law, first the city of New Orleans passed a law, and these slaughterhouses, all privately owned, said we’re outside the city limits. You can’t legislate for us. So they appealed to Louisiana, and Louisiana passed a law that there would be a place south of the river. And if you wanted it south of the town, down the river, and if you wanted to run a slaughterhouse, you had to run it there. And they sued on their property rights under the federal Constitution.
LA: So this wasn’t a case about slavery and civil rights for blacks. This was a case about property rights, and the power of a locality to protect the health and safety and welfare of the people. And so they say two things in the majority opinions in that case. One is they say this is about black and white. This is not about a thing like this. It can’t be used for this. And they might just have said look, states have a police power. They can legislate under that, and this doesn’t interfere with that.
HH: They could have been modest. They could have been modest, yes.
LA: But they went further, right? They went too far, in my opinion. But the case is significant, because remember, it touches on this deep problem, a problem that Lincoln was very well aware of and spoke eloquently about, and that is how are you going to make a free people when by huge majority, they think a thing to do something they don’t, that they want. And the problem in every form of government is when the sovereign works injustice, as was happening here. And that’s when it’s hardest to fix. And you can abandon popular rule, and then the danger is the rulers will work injustice in their own interests.
HH: And Dr. Carrington, it is also at this time that the Supreme Court is acting imprudently, that perhaps Grant is acting, all of the Republicans are acting imprudently, because they don’t send the best governors to the South, do they?
AC: No, they certainly don’t, and there was plenty of confusion there from Johnson to Grant where when they have provisional governors, those governors, especially early on, had a choice. Were they going to try to establish a viable Republican Party in the South? Well, that really would have required either bringing over a lot of ex-confederates, or making appeals to the freed slaves as voters. And what they ended up more trying to do was the latter in the early, or I’m sorry, the former in the early part of Reconstruction, meaning appealing to ex-confederates. Well, that really did not work and never worked. And then later on, when that didn’t work, they came down much harsher and established military districts in the South, refused to seat their Congressmen, and created a lot of resentment without even building some sort of goodwill or constituency, partly based off, also, the problems that Dr. Arnn’s articulated.
HH: And people were making money hand over fist, weren’t they?
AC: Yes, in fact, I’ll admit, I have an old relative that was a Civil War veteran, and he was appealing at one point for Union pensions in Ohio, and then a few years later in Alabama. So maybe he was one of them. I’ve been trying to figure that out. But yeah, there was lots of attempts to invest in the South, and some of it was good-natured. Some of it was an attempt to say we need to get rid of this plantation system that reasserts, in many ways, the vestiges and badges of slavery, even if the form isn’t there anymore. But then there was also a lot of graft, a lot of we will take advantage of a region in a pretty rough situation right now.
HH: The famous term carpetbagger, correct?
HH: And what does that mean? Again, we have Steelers fans.
AC: Well, it originates in the idea, well, who it referred to were those from the North who rushed to the South to try to take positions of authority, positions of finance, to basically rule and lord over the South now that the South has been vanquished.
HH: And it happens after every modern revolution as well, if you look in the aftermath of the Iraq collapse and the aftermath in Afghanistan. Graft follows in the wake of war as surely as sunshine comes out after a storm.
—- – – —
HH: I normally play classical music during the Hillsdale Dialogue, all of which are available at www.hughforhillsdale.com. But Joan Baez’ famous ode to the defeated South, I thought, was appropriate. Dr. Arnn, the danger of being led by genius is that when the genius leaves the stage, there aren’t any second acts. You spoke favorably of Grant before. But it was sort of a political collapse, and a calamitous one, for a period of time in the aftermath of the Civil War, and that most natural of human urges, revenge, was in the saddle.
LA: Oh, yeah, and you know, in my opinion, is it would have been better if Lincoln had lived, because he could have reasoned and appealed. But against that, you can also say, you know, he reasoned and appealed before the Civil War, and we go the war. And there were these terrible abuses in Reconstruction by the federal authorities – profit-taking and unaccountable government. But that was matched, you know, because like many of the Civil War leaders had excellent records seeking peace and union and civil rights after the war. But Nathan Bedford Forrest, a really great cavalry commander, formed the Ku Klux Klan.
LA: And so you know, you’ve got all that going on, right? And so you’ve got abuses on both sides. It’s a very bad situation for a long time.
HH: This is a broader question, but through all those thousands of years we’ve been studying, has any civil war ever been followed by other than this? I mean, Sparta and Athens, all the way through the Russian revolution, isn’t it always this way?
AC: Well, civil wars are the nastiest wars, because sometimes, the person who’s closest to you by kin, blood, can become the bitterest enemy. And civil wars are also very deep, because they’re very clarifying. They’re normally fought over what it means that we are a nation, what principles hold us together, what do we think justice is in a way that sometimes isn’t sort of exposed all the way down to the bone the way they are in maybe foreign conflicts.
HH: And so what happens to these vast millions of slaves who are suddenly set free, but also have no means of taking care of themselves?
LA: Well, they’re given, you know, there’s freedmen bureaus around, and there abuses in those, too, but they did a lot of good, too. They gave land to many of them, and they gave them a mule. And they let them set up on their own. But of course, that went different ways in different places, because they’ve got neighbors, and they’ve got to sell stuff, and they’ve got to buy stuff. And what if people won’t cooperate? And you know, the systems of oppression, of the freed slaves, survived well into the 20th Century, of course. The 1964 Civil Rights Act was you know, a very important thing, and changed a lot since then. But you know, my own view of all that is that the reason that the changes happened after the 1964 Civil Rights Act was that most people thought they were right.
HH: Yes, of course. And that’s exactly right.
LA: And that wasn’t true, you know, in the South, and other places, too. And you know, the Reconstruction, the military force part of Reconstruction, ends with the 1876 election, is that right, Adam?
HH: Yeah, the disputed…
LA: And there was a, it was a very close election. It was thrown to the House, and they worked a deal. And Hayes got in, though he’d lost the popular vote, in exchange for an end to the military reconstruction. And what you get after that is Jim Crow laws.
HH: Sure, and up until that time, I think you’d had blacks elected in the South so that for example, Senator Tim Scott of South Carolina is now the first African-American since Reconstruction, that’s how the phrase goes, who has represented South Carolina. And immediately, almost, I think, Professor Carrington, the hammer came down on the newly-freed slaves.
AC: It really did, and are you talking post-the fall of Reconstruction?
AC: Yes, it took a little bit of time to really settle in, but yes, especially when the Supreme Court agreed to uphold, well, uphold two things – one, uphold segregation as being separate but equal in the infamous words of Plessy V. Ferguson, but even before that, to say that the only way it will enforce the 14th Amendment is to say that the states are actively discriminating, if they are the ones passing the discrimination. Now what you ended up having was not only lots of individual discrimination, but equally written laws that were unbelievably and unequally applied. I’ll give you a statistic that actually precedes some of this, but it continued later. 500 murder indictments of whites against blacks in Texas in 1865, zero convictions.
HH: That sums it up.
—- – – — –
HH: I am here to tell you that you might not think much about Reconstruction as I have been talking about Reconstruction, that period in American history following the Civil War with Dr. Larry Arnn, president of Hillsdale College, and Dr. Adam Carrington, who is teaching at Hillsdale College now. But you ought to, because it’s so profoundly distorting of our history to this day, because not only did the 14th Amendment go badly awry in the Slaughterhouse cases, that eventually led to Plessy V. Ferguson, as Dr. Carrington just said, which eventually led to the 1964 Civil Rights Act being premised on the Interstate Commerce Clause power, Dr. Arnn, which eventually led to Obamacare being premised on the Interstate Commerce Clause and the taxing power. That one decision disfigured the entire course of American Constitutional law in ways that we still live with.
LA: Well, that and another. You know, there was the Civil Rights Acts of, what 1870-something that was struck down in the civil rights cases of 1875.
LA: And that, by the way, opened the way for Jim Crow, because there, the question was, some African-American people, freed slaves, and their descendants, maybe, sued a bunch of railroads and hoteliers and people who owned private property that was for public use, and they wouldn’t admit blacks. And so the Supreme Court held in that case, a very important case in 1875, that the 14th Amendment didn’t have anything to say about private action. And there’s a dissent in that case by another great justice, John Marshall Harlan, who makes this argument, and this argument has always seemed to be golden, really good. Effectively, that if you open your doors to the public, you’ve got to let the public in, and he made the point in the course of that case that a lot of these railroads are running on government land and government-subsidized things, and so, and you know, by the way, some of the railroads had been agitating to get rid of the blacks on the carriages. But the government was behind it. And so that’s right. Jim Crow got its basis laid in the arguments of the Slaughterhouse cases and the Civil Rights cases, and then also in the hearts of very many people. And so it took a long time.
HH: Now I’m very curious, Dr. Carrington, this is your specialty, and I can’t wait to read this book on Stephen Field, who’s, I didn’t realize was a Lincoln appointee, I’ve been teaching the dissent for years. But my curiosity is, is there a good book on Reconstruction? Did anyone ever capture the whole of the range of emotions and conflicts in a book that stands out on the shelf?
AC: I think the most complete work, and it’s a work of history, I think more work can be done, especially from the angle of politics and American political thought, but historically, Eric Foner’s book on Reconstruction, and he’s got a shorter version and a longer version. And I think those, as far as if you want to get the basic arguments, the basic details, that is an exhaustive and almost exhausting because of the length, work as far as trying to get at least the ideas under your belt.
HH: And when did that come out? I’m unfamiliar with it.
AC: That came out in the late 1980s.
HH: Okay, so there’s been much since then. And Dr. Arnn, I’m curious if you think there’s going to be a renewal of interest in this, because we’re back into the period of racial tension in the United States. These things, you think they go away, and then they’re back center stage again. You think we elect our first black president and we will be past this, and we’re not.
LA: Well, a point of information, wasn’t Stephen Field also one of the dissenters in the Dred Scott decision?
AC: He was not a dissenter in the Dred Scott decision, but I will say, and this is to his great chagrin, he was in the majority in Plessy V. Ferguson.
LA: Oh, that’s too bad.
HH: That’s too bad.
LA: But the point is, if you read John Marshall Harlan’s dissent in this case, and Field’s dissent in the Slaughterhouse cases, then you see the way through. And this means that your question, Hugh, about contemporary times, it means that the tragedy of the American political system is that we are not often able fully to live up to our creed. And what is our creed, except, as regards race, except colorblind law?
LA: And we’re in a fight for that today as much as before. You know, for sure, a person’s race should not be taken into account in any legal way, or before the law in all respects.
HH: Neither to award benefits or inflict penalties ever.
LA: And that seems to me the American idea. And that ides is hotly contested by many people today as it has been in American history.
HH: And because of the great depredations of slavery and because of the great, awful evils of Jim Crow era, people are sympathetic to the idea of reparations and doing just, but you can’t ever get back from that. And I’m curious, Dr. Carrington, the 40 acres and a mule, the Freedmen Bureau, was there in, during the Reconstruction era, any sense that a debt was owed to the slave because they had been a slave?
AC: Certainly, and this was part of the debate between, say, Andrew Johnson and the radicals. Andrew Johnson actually vetoed the bill creating the Freedmen’s Bureau, and it was passed over his objections. And he was basically saying no, this will create, this is an overreach by the federal government, it’ll create dependency. And what the radicals said, and you know, there was some sense of this, at least in this situation, is these persons who have actually been in slavery, we do need to create some conditions for them to have a life, liberty and property of their own.
HH: And so here we are 120 years later, or longer, 150 years later, and we’re not done with this argument, Larry Arnn. Last minute of the Hillsdale Dialogue. I don’t know 150 years hence, we will be.
LA: Well, Lincoln said always to be striven for, always to be struggled over, never to be wholly attained. The challenge of America is to what Martin Luther King said – live out the true meaning of its creed. And that’s never going to be done. And in my own view, this is not a particularly good time for the attempt of that. We’re not doing a very good job, in my opinion, right now. But the answer is to try to do better.
HH: Well said. And Dr. Carrington, thank you so much. I look forward, when’s that book coming out on Stephen Field?
AC: It’s actually in the works right now.
HH: Looking forward to it. Thanks for joining us on this Hillsdale Dialogue, and to you, Dr. Larry Arnn. We’ll be back next week and talk about the awful era of progressivism.
End of interview.