Heather Cox Richardson:

From CAFE and the Vox Media Podcast Network. This is Now & Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman. Today we’re going to be talking about something that, I guess I say this almost every week. It’s really logical for us to be talking about because that’s how we pick our topics. But in this case, it’s a big topic with extreme relevance and huge implications. And the topic is the Constitution. What is it? How do we conceive of it? What does our Constitution do besides structure the government? And of course, this is coming about because of a post on the social media platform, Truth Social on Saturday December 3rd when former President Trump posted the following, and I’m going to read a couple sentences because everyone is screaming about what he actually said. So this is the full quote. “So with the revelation of massive and widespread fraud and deception in working closely with big tech companies, the DNC and the Democrat Party, do you throw the presidential election results of 2020 out and declare the rightful winner, or do you have a new election?”

And this is the part that got the attention. “A massive fraud of this type and magnitude allows for the termination of all rules, regulations, and articles even those found in the Constitution. Our great founders did not want and would not condone false and fraudulent elections.” So the termination of rules, regulations, and articles in the Constitution, that was the alarm bell ringing statement that the former president made. Heather and I have been talking ever since about the degree to which that’s an alarming… Beyond alarming, I don’t even know the word Heather. You can come up with a better word than I can, but it’s screamingly bad for a former president to talk about terminating the constitution or part of it. And yet, there sure hasn’t been a lot of pushback on the side of the right to a really extreme statement like that.

Heather Cox Richardson:

I just want to add that people on the right tried to defend that statement by reading it in a different way than many people took it. And what they said was is he was really saying that if one allowed massive fraud, then the Constitution was not solid any longer. But in fact, after he posted that first statement on Truth Social, he posted another that said, “Unprecedented fraud requires unprecedented cure and did not, in fact, until many, many days later say, “Oh, you all are reading it the wrong way.”

Joanne Freeman:

The lying press is taking it the wrong way, which is why I read the whole thing, because that is word for word what he put. He didn’t say suspend. Some people are saying, “Oh, he didn’t say terminate, he said suspend.” Which really isn’t a lot better, but still, and we’re interpreting all kinds of meanings into what he said. The meaning of what he said is pretty clear-

Heather Cox Richardson:

It’s pretty clear.

Joanne Freeman:

… and you just said, Heather, he doubled down on it when there was a fuss.

Heather Cox Richardson:

What was truly shocking to me was not necessarily so much that he said it, although that was shocking enough, but that there wasn’t universal condemnation and outrage over that statement, especially on the part of the Republican Party’s leaders who tried to distance themselves from it, if they said anything in which they said, “Oh, well, he doesn’t have the power to do that,” or, “He says all sorts of things, we don’t follow them.” But almost none of them, with a very few notable exceptions, went on to say that they would not support him were he the party’s nominee, because of course they’re interested in picking up his voters who are perfectly happy to throw out the Constitution, burn it all down, right?

Joanne Freeman:

If they’re not responding, that says something about what they are putting in front of them as necessary values at this moment. And the way in which they’re playing with language, we’ve talked a lot on Now & Then about the importance of words and word choice and we’re in a moment where words really matter a lot. Was it a “riot” or an insurrection or an attempted coup? This is another case where people are using language in a really interesting way to not say something. So for example, Mitch McConnell, in response to those postings on Truth Social said.

Mitch McConnell (archival):

Anyone seeking the presidency who thinks that the Constitution could somehow be suspended or not followed, it seems to me would have a very hard time being sworn in as President of the United States.

Joanne Freeman:

He refused to say anything about whether he would support Trump if he was the nominee. He refused to say that was a statement that is dangerous and wrong and should not be tolerated. He basically said, “Well, I don’t know. You’d think that might be problematic if he runs for president.”

Heather Cox Richardson:

Mitch McConnell being the Senate Minority leader, which is the top position in the Senate for the Minority Party. It seems like this would be something that people could come together over. And all I could think of was how widely condemned William Lloyd Garrison’s statement in 1831 was when he said-

Joanne Freeman:

“As one does.”

Heather Cox Richardson:

As one does, that’s right. But I couldn’t think of any other instance in America where somebody had condemned the Constitution. In that case, he calls the Constitution a covenant with death. He was condemning the Constitution because he said it permitted slavery. And that statement of his, that’s in like most textbooks as being outrageous, and this idea that you would burn down the entire country over one issue or another. Literally, this one man who was a newspaper editor, an abolitionist, not a lawmaker, made a statement to gain attention for his cause and that we are still talking about in textbooks. And here you have a former president talking about essentially not just suspending the Constitution as people started to saying after he said this, but actually terminating it.

Joanne Freeman:

It’s so represents where we are right now. We’re constantly assuming in our heads that there’s a line somewhere that won’t be crossed, and we keep coming up with these moments. As you just said, Heather, surely people can come together around the Constitution. Nope.

Heather Cox Richardson:

Well, I drew a line a long time ago. I’m way back and I’m not letting that one go. But the reason we wanted to do an episode on this is because at least when I first started studying American history in the Constitution, I thought of the Constitution as being sort of really dry and really dull and something that I was supposed to learn in fourth grade and didn’t. It seemed like it was just kind of always there. And the truth is, the more about it, the more you recognize how incredibly exciting and dynamic a document it is and how incredibly important it was first for the framers to do it, and then in a way for us all to continue to be framers in terms of using it and holding it together.

So I always like to work with Joanne, but I’m especially happy to work with her on topics that she is the country’s expert on. And it just happens… You should see the look on her, she just rolled her eyes. I think she disagrees that she’s the country’s expert, but take my word for it. But she of course is an expert on the early republic, so she knows just a teeny tiny bit about the Constitution. So do you want to walk us through a little bit about what’s going on with the idea of writing a constitution first of all?

Joanne Freeman:

The thing to remember about the Constitution, first of all, is it’s not as though a whole generation of people said, “You know what? We need a constitution. Okay, let’s go. Let’s write it.” Now we have one. Next. It was an enormous big deal, and it was not something that people even initially set about to do. They essentially backed their way into it because it seemed like such a major undertaking. Now, I’ll supplement that by saying it’s also important to note that the late 18th century is a period of constitution making. It’s a period when states were making constitutions. It’s a period in France, they’re worried about the same ideas. You have the creation of the Articles of Confederation in the United States, and then the Constitution.

It’s a period of political experimentation and the word that people used for what was going on in the United States was experiment because it was a world of monarchies. And here was this government, a small R republican form of government grounded on public opinion, no monarch, an executive, but no monarch. Could this even possibly work? And that’s the spirit in which this was thought about in which this was considered. When you read the debates at the Constitutional Convention, which are really readily available online, you can feel people feeling their way around in the darkness, trying to figure out how much they need to put down on paper versus putting too much down on paper, which will defeat what they’re doing as a document that’s intended to unite a country.

Heather Cox Richardson:

So they are literally trying to figure out how to write a democratic government, small D democratic government. This is a new idea and no one quite knows how to make it work, and they’re young men for the most part. Most of them were under 50. There were a few between 50 and 60, and there was nobody over 60 except-

Joanne Freeman:

Benjamin Franklin.

Heather Cox Richardson:

Who was 645 years old as she was 81. But for the most part, they’re quite young men. Many of them are in their twenties actually, and they’re trying to figure out how they can create a government that represents the will of the people without running the risk of becoming a dictatorship. I don’t know, I sort of imagine them sitting together over lunch or whatever going, “Wait a minute, wait a minute. If we don’t do this, then that’s going to give too much power over here because the whole thing is full of what I’ve called trip wires that you can get just so much power before somebody comes and yanks it out from underneath you.”

Joanne Freeman:

And they’re hypersensitive to power because they just broke away from a king who they were claiming was in one way or another, tyrannical. So executive power is something that they’re really aware of and you see that when they start making state constitutions, right? The colonies declare independence, they become states, and now they all have to write a constitution because they’ve just stripped the British government out of their colonies. A lot of these initial constitutions had a really, really, really weak governor and a really strong legislature because they were really worried about how they were going to assign power and about how they could guarantee that the people would maintain a hold on power.

Heather Cox Richardson:

And the first attempt at an agreement for the 13 colonies turn states is the Articles of Confederation, which focuses far too much on the power of the legislatures, right?

Joanne Freeman:

Well, it was more than anything else the Articles of Confederation is like a document that joins little nation states together in basic agreement on a number of things, but has almost no power to enforce anything within it. It’s not until it takes effect. And the 1780s unfold that many people begin to believe like there are things happening, crazy things happening. There are uprisings and rebellions and no one wants to actually oppose them and the Confederation Congress really can’t force any states to do anything. There are a lot of crazy things happening in the 1780s, and what people discovered was that the Articles of Confederation didn’t quite appear to be up to it. At the beginning the Constitutional Convention was called to revise the Articles of Confederation. Their job was not to write a new constitution.

Heather Cox Richardson:

Their job was to revise it in part because like you say, they’re uprisings, because some of the states don’t bother to pay their debts, which affects other states. And because a number of the states start to talk about creating their own trade agreements with other nations, which would cut people out.

Joanne Freeman:

But there were even bigger things in that happening. Parts of states were discussing breaking off of other states and maybe forming their own states. And there was a huge rebellion, change rebellion in which people were shutting down courts and refusing to pay taxes. In Massachusetts, they pleaded with the Confederation Congress, “Help, there’s a big rebellion here.” And the Confederation Congress essentially couldn’t do anything. And a lot of people who were there said, “Hey, that’s a Massachusetts problem with [inaudible 00:13:07].”

Heather Cox Richardson:

Yes, good luck.

Joanne Freeman:

Pretty much, pretty much. So these are the sorts of things that led to an agreement on the parts of the states that the article should be revised and pretty much all of the states just wanted them to be revised. There was one set of directions from one state legislature that had a sort of wiggly enough word in it that it offered room for doing more than revising and maybe even creating something new. And so ultimately that’s what the Constitutional Convention seized upon. So the entire creation of the Constitution, they were not asked to create a new constitution. They did it because they thought that they were addressing, in a responsible way how to have a powerful government that still relied on the people.

They could have easily sent this around for ratification and maybe the Confederation Congress could have said, “This supersedes, this is beyond what you were supposed to do. I’m sorry, we don’t accept it.” The states could have said, “What the heck? You’re not supposed to create a new government.” So this was an act of, on the one hand, constitutional creativity; on the other hand, an assertion of where power should be placed, but one way or another, it’s hardly boring ink on a piece of paper. It’s people really fundamentally trying to figure out what this new nation should be.

And you see sometimes in their private letters, like there’s a John Adams letter I believe in which he says something along the lines of, “You and I, we are alive at this time when people in the past, statesmen of the past would’ve died to be part of. We’re creating governments.” They all were educated. They all read as young educated men, Plutarch’s Lives of the Great Greeks and Romans and Plutarch said, “The absolute greatest thing that someone can do is to be a statesman and even better create a government.” So this is a time, and you feel it throughout their writing in this period where they felt as though enormous things were happening and they felt as though what they were creating was not just a piece of legislation, but actually was something special and had to have a special purpose.

Heather Cox Richardson:

And George Washington actually recalled that when he talked about the writing of the Constitution. In a letter to the Continental Congress on September 17th, 1787, he wrote, “In all our deliberations on the subject, we kept steadily in our view that which appears to us the greatest interests of every true American, the consolidation of our union in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds led each state in the convention to be less rigid on points of inferior magnitude than might have been otherwise expected. The Constitution, which we now present, is the result of a spirit of amity and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.”

Joanne Freeman:

So indeed, they looked back and one of the things they prided themselves on is, “Look, we sat in a room and we debated this, and we came up with a constitution.” And as Alexander Hamilton says, in the first paragraph of the first Federalist essay, “Most governments are created by accident or force, and this one is different.” He essentially says, “We’re deciding for all time if you can do that. Can you create a government in this way? Or are we for all time destined to have governments created by accident or force?” So obviously I’m jumping up and down with excitement because this was a big deal at the time, and we don’t have a connection with what it meant to create this constitution. And an important fact I’m going to raise here, which is definitely going to come back towards the end of what we’re talking about today.

They didn’t all agree on what it did and what it said and what it should do and what it should say. I say this all the time when I teach, there was never any founder blob, one big blob of founders who all agree about whatever. There just wasn’t. So, even as they’re the people who create the Constitution are in disagreement as the new government takes off in 1789, long tradition begun of not only trying to figure out what the Constitution represents and what it is, but even just trying to figure out ultimately what is the government it creates.

Heather Cox Richardson:

Franklin’s got a great quote where he says, “The players of our game are so many, their ideas so different, their prejudices so strong and so various and their particular interest independent of the general seeming so opposite that not a move can be made that is not contested.” The numerous objections confound the understanding. The wisest must agree to some unreasonable things. The reasonable ones of more consequence may be obtained, and thus chance has its share in many of the determinations so that the play is more like trick track with a box of dice. But a couple of things emerge from this new Constitution. One, it seems to me is an incredible excitement about this idea of a new government, and another is the idea that the Constitution embodies a new national government. That while the Articles of Confederation had focused on bringing together all these little states, as you said in the League of Friendship, the Constitution quite deliberately makes the federal government supreme. Is that right?

Joanne Freeman:

Well, yes. And one additional point, it makes the federal government supreme, but it grounds even that on we the people.

Heather Cox Richardson:

Not on the states, on the people.

Joanne Freeman:

No, we the people. And that was very deliberate as a means of going even above and beyond individual states and saying, “We the American people, we the people are coming together for this.”

Heather Cox Richardson:

And it was an incredible triumph and that’s the end of our episode today, because there was never another problem.

Joanne Freeman:

It’s remarkable how that worked really until like a week ago.

Heather Cox Richardson:

Yeah, yeah. Exactly.

Joanne Freeman:

It’s shocking. Shocking.

Heather Cox Richardson:

Exactly. All right, so the idea of everybody agreeing behind this document, even if they disagreed in little bits that they agreed to all of it, pretty quickly, certain people decide that they’re going to take exception to the very document that they have written.

Joanne Freeman:

Absolutely. When I’m asked about decades that I would compare to the present, everyone nowadays says, oh, the 1850s, and sometimes I’ll throw in the 1960s. I also mostly throw in pretty much the late 1790s because that’s another thing.

Heather Cox Richardson:

We all do, Joanne. Every night-

Joanne Freeman:

It’s just me who didn’t know. I know.

Heather Cox Richardson:

Every night over dinner, man, we are talking about the 1790s.

Joanne Freeman:

Little did I know. It’s one of these extreme moments where people are at the time basically in one way or another, are helping to decide how democratic, small D, the government is going to be. And it’s unclear, and there’s no right answer if you’re there at the time. They’re figuring this out again as they go. People had an understanding that the nation was taking a major move in one direction or another like the present, and that the things that were happening on a ground level and on a national level were really, really important and the extreme measures were justified.

Heather Cox Richardson:

So walk us through the Kentucky and Virginia resolutions and explain why they’re wrong.

Joanne Freeman:

Okay. Well, in 1798, the United States is involved in an almost war with France, which comes to be known as the quasi war with France. In the spirit of coming up with restrictive measures to protect American national security during a time of quasi war, they pass a series of acts. There’s the Naturalization Act, which raises the requirements for aliens to apply for US citizenship, particularly asking that immigrants reside in the United States for 14 years before they become eligible. There was the Alien Act that gave the president the authority to deport aliens even during peacetime. There was the Alien Enemies Act, which gave the president power to deport any alien living in the United States with ties to US wartime enemies. And then finally, in a sense this is the most famous one, the Sedition Act, which made it illegal to “write, print, utter, or publish” any false scandalous and malicious writing or writings against the government of the United States.

Now, they claim the Federalists who had been in power throughout the 1790s claimed this is a matter of national security. But in their private letters, they also said, “Wow, the Sedition Act, we could handily silence some of the press that’s really on our backs here, even though it’s national security but there’s an added bonus here.” So on the one hand, they probably on one level sincerely feel that what they’re doing has to do with national security, but they’re also using it as a political ploy. In that spirit, Thomas Jefferson and James Madison, who by the way-

Heather Cox Richardson:

I’m sorry, who was that?

Joanne Freeman:

I was waiting. I was waiting for the response. I almost was going to say, “Thomas Jefferson and?” Allowing for the Heather Pause. Jefferson and Madison, who at this point are really, really opposed to the Federalists who are in power and are beginning to call themselves Republicans, the Jeffersonian Republicans or Democratic Republicans.

Heather Cox Richardson:

Which I always like to emphasize is not the same as the current day Republicans. Similar name, but not the same party at all.

Joanne Freeman:

Absolutely correct. There are no straight lines in political parties in America, despite the fact that people like to draw them. But so they come up with these two resolutions, one for Virginia, one for Kentucky, which in one way or another basically say… I’m going to read the more extreme version here, which is the Kentucky resolutions, which were written by Jefferson. “Where powers are assumed, which have not been delegated. A nullification of the act, is the rightful remedy that every state has a natural right in cases not within the compact, to nullify of their own authority, all assumptions of power by others within their limits. That without this right, they would be under the dominion, absolute and unlimited of whosoever might exercise this right of judgment for them.” Which is a very roundabout way of saying states have the power to nullify unconstitutional acts. Madison doesn’t use the word nullify, but both Virginia and Kentucky’s resolutions are making the stand that states can act against the Constitution.

Heather Cox Richardson:

So two points on that one. This it seems to me is the beginning of the articulation of a state’s rights doctrine, right?

Joanne Freeman:

Sure.

Heather Cox Richardson:

And this is 1798. So people ask Why I don’t like Thomas Jefferson, and one of the reasons is because he’s all about power and he does to my mind whatever it takes for him to get more power. So within this whole state’s rights argument from the very beginning is an attempt to garner power for people who feel like they don’t have enough, by my reading of it. And Thomas Jefferson himself, when he gets into power quite happily squishes his opponents and quite happily takes on powers that were never even thought of in the Constitution, like spreading to the American West with the Louisiana purchase of 1803.

Joanne Freeman:

He knows that that is not in the Constitution, right?

Heather Cox Richardson:

Yeah, but he does it anyway.

Joanne Freeman:

Well, but here’s the thing.

Heather Cox Richardson:

He’s like, “We need a constitutional amendment, but we don’t have time. Oopsy poopsy, let’s just go ahead and take the land anyway.”

Joanne Freeman:

Well, that’s what I… I can’t believe I’m defending Thomas Jefferson, but that’s what I’m objecting to is it’s not happily doing this and it’s not quite Oopsy poopsy. He realizes there’s a big problem, he writes about it, he talks to Madison about it, but-

Heather Cox Richardson:

But he does it anyway.

Joanne Freeman:

Yes, but it’s not like, “Ha ha-ha, I don’t care.” He’s doing it, but it’s actually amazing-

Heather Cox Richardson:

But he feels bad about it.

Joanne Freeman:

Well, no, but it’s a major, major factor in what happens when the Republicans take over from the Federalists after the election of 1800. The Republicans have been the anti-power party basically, the anti-national power party. And now what you do when you have power, and that ends up being a really confusing time even for Thomas Jefferson. So I can’t believe I’m defending him here, but he is doing things that he would not have done were he back in the 1790s but Republicans are kind of feeling their way through as to what they can do with power.

Heather Cox Richardson:

We have the Constitution now by 17… The late 1790s, we have two of the thinkers who were behind the Constitution saying, “Wait a minute, we didn’t actually mean that everything was supposed to go to the federal government. There are things that we want to retain at the state level and really quickly that’s going to become a political theory that’s behind eventually the creation of the Confederate States of America.” The idea that power resides in the States, not in the federal government, that the more power you can put at the state level, the closer you are to democracy. And if people at that state level decide that they want to enslave their neighbors, well, that’s fine because it’s democracy. Or take the land from indigenous people, that’s just ducky too, because that’s true democracy.

Joanne Freeman:

We got an oopsy poopsy and a ducky in the same episode.

Heather Cox Richardson:

It’s almost the holidays, what can I say?

Joanne Freeman:

But it’s important to note two here, that there’s a deliberate murkiness about what the national government and the states should have power to do. The word national does not appear in the original Constitution. That was too scary an idea: a big national government. So the idea of federalism that the national government has some power and that the states have some power and that there won’t be an absolute definition of what that means or how that breaks down, that’s a huge key behind the passage of the Constitution. That’s something that we grapple with still all the time

Heather Cox Richardson:

Behind the passage, but by the 1850s, the concept that is launched in the Kentucky and Virginia resolutions has grown to the point that lawmakers at the federal level and at the state level have come to argue that true American democracy sits in the states. And if you honor that democracy there in the states, it’s fine for it to take over the federal government. So by the 1850s, a very small minority of the American population is calling the shots for the entire country through the Electoral College Act, through control of the Senate and through the control of the Supreme Court. So the whole concept of there being a federal government in which you have majority rule under the Constitution has really disintegrated by the 1850s, which is really what gives us the Civil War, right?

Joanne Freeman:

And southerners are grabbing it Jefferson as someone who’s propounding, defending states rights, as someone who supports what they’re doing.

Heather Cox Richardson:

And then the Confederacy writes a constitution of their own, which is absolutely patterned on the United States Constitution with a few minor changes and then one really big change, and that really big change is it guarantees human enslavement, which at this point, the Constitution of the United States is believed not to defend. So they make that major change. Obviously they lose the Civil War. And then we have what many people, including me, think of as America’s second founding, second version of the Constitution in the wake of the Civil War. After the war, the old idea that democracy really belongs in the States has not gone away. In 1865, the southern state legislatures not only do what then President Andrew Johnson asks them to in terms of ratifying the 13th Amendment outlawing slavery and refusing to pay Confederate debts and nullifying the Articles of Confederation. They also pass a series of laws called the Black Codes, which relegate newly freed African Americans into a second class status.

They have to sign up to work for white men for a year, and if they don’t, they’re considered vagrants and can be thrown in jail, and then somebody can pay their fines and they have to work the fines off, which sounds an awful lot like enslavement from this perspective. They’re not allowed to talk back to white people. They’re not allowed to fraternize with white people. It depends; different states have different laws. But when that happens, the United States Congress recognizes that in some fashion it’s got to figure out a way to protect Black Americans who after all were the Southerners that were far more likely to support the United States than the white Southerners were. In order to protect their Black allies in the South, the Republicans in Congress recognize that they need to change something major and they need to change the Constitution, and this is where we get the 14th Amendment.

The 14th Amendment to the Constitution is just earth shattering. The 14th Amendment guarantees that African Americans are going to be citizens, which overturns the 1857 Dred Scott decision at the Supreme Court that said they weren’t. But then it goes on to say that no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States. That is you can take your Black Codes and you can shove them. Then it goes on to say that a state shall not deprive any person of life, liberty, or property without due process of law, which says that the Black Americans who are at the time in the Southern states not allowed to testify in court, not allowed to have a civic presence in those states, cannot be treated as second class citizens. They cannot have their property taken away without legal processes.

That is, you can lose those rights if you murder somebody or something, but you can’t just have them taken away by virtue of the fact that somebody doesn’t like you and they can’t deny to any person the equal protection of the laws. To me, that is language that is right up there with the Declaration of Independence because that’s what it really does. It puts the Declaration of Independence into law. It says that the federal government is going to make sure that those state governments can’t override the rights of US citizens. It is again, truly the second founding that says we all have equal rights.

Joanne Freeman:

And it’s actually specifically true that some people refer to this as the Second Constitution, that the First Constitution failed in the Civil War and that because of the events of the Civil War, which obviously have a profound impact on national and state governments, what emerges from that is a different understanding of what the Constitution is and what it can do. So in a way, what you’re looking at after the Civil War and everything you just talked about, Heather, that’s going on with Black Codes in the South, you’re looking at another moment when things are in flux, when there’s a sense of, for better and worse, constitutional “creativity” going on. And there’s a sense that you can set fundamental terms, and in fact, you need to set fundamental terms with constitutional terms again. So I quite agree with you.

Heather Cox Richardson:

And on the basis of that, in 1870, Congress creates the Department of Justice to go and make sure that American citizens in the American South have protection against the Ku Klux Klan in that case. That idea that the federal government is going to protect individuals is incredibly important, and then of course, by 1871, there’s a backlash against it. And we’re going to go into a period of a couple of generations where that is not honored. But crucially, after World War II lawyers arguing before the Supreme Court, most notably people like Thurgood Marshall and Constance Baker Motley begin to use the 14th Amendment again and they begin to say, “Hey, wait a minute, all these Jim Crow and Juan Crow laws in the American South and the American West, the federal government has the power to declare those things unconstitutional because of the 14th Amendment.

It’s not the first case in which people use the 14th in that way, but people really remember the Brown v. Board of Education decision of 1954 in which Thurgood Marshall and Motley argue before the Supreme Court that segregation in public schools is unconstitutional under the 14th Amendment. When the Supreme Court decides that actually under Chief Justice Earl Warren, who had been the Republican governor of California, and it decides that unanimously, by the way. Once they have done that, the Warren Court and later on the court that comes after it, the Burger Court is going to use the 14th to defend civil rights in the States for a wide variety of people who have previously been discriminated against.

So for example, we’re going to get in 1965, the Griswold decision, which says states can’t stop married people from having access to contraception. It’s going to give us the Obergefell case, which protects equality in marriage rights. It’s going to give us in 1973 the Roe v. Wade decision, which gives people the right to abortion. The idea of the 14th Amendment overriding states’ rights that in some states had really been used to deprive women, gay Americans, minorities of equal rights is at the heart of the enormous extension of civil rights after World War II in America. The thing that really gave us the world we know today.

Joanne Freeman:

And I will link that back to something we said towards the outset, which is think about the way in which the Constitution in that sense is redefining we the people. It’s becoming a much more inclusive and empowered we. I always consider it a kind of ladder that you can climb, you can use the Constitution to reach for rights that it justifies in one way or another and that’s some of what happens in the Civil rights era as well.

Heather Cox Richardson:

Every time when we talk about an expansion of we the people, I always come back to, why wouldn’t we want that? Why wouldn’t you want your best minds to be working on creating a better world rather than saying, we don’t want your mind because it’s housed in that kind of a body? I just-

Joanne Freeman:

Well, you’re being very logical and I can’t answer that question because it makes no sense to me that answer, that somehow you would think that your mind and your body are better than every other kind of mind and body.

Heather Cox Richardson:

Well, and we are perhaps the right people to be talking about this as 60-year-old women who were just on the cusp of being able to go to certain schools and to be able to participate in sports and do all sorts of things that are not even our mothers, but in my case, my older sisters couldn’t do. However, there is a backlash against the 14th Amendment with a new kind of reading of the Constitution from the people who really objected to this wider we the people. And that of course is the rise of originalism.

Joanne Freeman:

So originalism, basically the idea that the Constitution should be interpreted very strictly according to the precise words in the document and in the sense that the framers intended it. So thinking about the original document of the Constitution in its time period by its original authors, that begins to be an issue in the 1970s and specifically in January of 1971, Yale Law School professor, eventually non-seated Supreme Court nominee, Robert Bork, wrote an article in the Indiana Law Review called, very legal journal kind of name, Neutral Principles and Some First Amendment Problems. And in the piece he’s talking about different kinds of rights that emerge from the Constitution and some of them he says are derived from what he calls specific values from the actual text and others have come about because of government bureaucracy created by the Constitution. And what he’s really interested in and what he prefers is that first kind, the kind that come from specific values from the text.

Heather Cox Richardson:

And this is in part because people who object to civil rights for Black Americans, for example, insists that when the Supreme Court steps in and says, “Now wait a minute, you can’t segregate your public schools.” That’s what they call judicial activism. In that case, of course, in 1954 in southern states, African American voters were almost unable to vote. They’re basically shut out of the vote altogether. But they say, “Wait a minute, the voters here in the States have chosen segregated schools. That’s democracy.” And when you use the federal government, the Supreme Court to overturn that, that’s judicial activism. It’s legislating through the courts rather than legislating at the state level. And they say that any kind of what they consider judicial activism is destroying democracy.

So Bork’s answer to that is going to be that, “Well, what we really need to do is get rid of all this judicial activism by going back to the original text of the Constitution and the original way that people fought about the Constitution at the time.” That’s not really the way originalism played out. It turned out pretty quickly that originalists weren’t really actually terribly interested in what life looked like during the time of the framers. And we have seen this recently in decisions like Dobbs versus Jackson Women’s Health, in which the Supreme Court majority talked about what they believed abortion rights looked like in the early republic. And historians have all said, that’s actually not true at all.

Joanne Freeman:

Well, and that’s the thing here that Bears mentioned, which is they supposedly want to ground what they’re doing on the intentions of the founders, but they’re not particularly interested in the history and the context from the period. So intentions becomes a very fuzzy kind of word, and we’ve seen recent decisions where historians have stepped forward again and again to say, “Actually, that’s not the fact. That’s not what it was like. That’s not the way it ran. That’s not what people thought. And here’s textual evidence to show that.”

Heather Cox Richardson:

So it turns out that the framers actually thought exactly like today’s originalists.

Joanne Freeman:

Yes.

Heather Cox Richardson:

Shockingly enough. But what originalism would do, and what it was designed to do, I think, was to erase the decisions of the post World War II era that expanded civil rights and that also backed the idea of a strong federal government that would in fact do things like regulate business. In order to make that have a legitimate intellectual underpinning, they tried to say, “Well, we need to go back to the early years. We need to get rid of all these decisions because that’s what true America is.” And there was a really powerful speech that Ted Kennedy, senator from Massachusetts gave after the Senate rejected Robert Bork for a seat in the Supreme Court in which he said.

Ted Kennedy (archival):

Robert Bork’s America is a land in which women would be forced into back alley abortions. Blacks would sit at segregated lunch counters, rogue police could break down citizens doors and midnight raids, and school children could not be taught about evolution. Writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is and is often the only protector of the individual rights that are the heart of our democracy.

Heather Cox Richardson:

Now, this infuriated Robert Bork. He said that every word in the statement was false, but I find this one of the most haunting and prescient quotations in American history because Kennedy made that statement in 1987, and at the time, as I say, people like Robert Bork said that was outrageous, and yet… I’m just not going to finish that sentence.

Joanne Freeman:

Yeah, don’t finish the sentence. And yet, and dot, dot, dot. People can totally fill in what the rest of that sentence should be. Now it’s interesting because when you go back to the founding period and see what people said about the Supreme Court, Alexander Hamilton and his Federalist essay says, among other things, “Well, that’s the weakest branch, the Supreme Court, because it’s deciding things, but the Congress has the power of the purse and the executive branch has the military power to some degree. What are the courts? What kind of power do they have? They don’t have an enforcement power of any real kind.” What we’re seeing with originalism is a way to claim authority based on what you think the framers intended. Intended is a really mushy word. It’s not the right word for it, but it’s a word that can mean anything and everything.

In a sense, regardless of who’s using it, it becomes a way to expand the power of the court. It’s one thing to talk about the Constitution and the government that it created to claim that you can restrict yourself just to the words in the document and that you can crawl into the mind of James Madison and somehow by judging his intentions in 1787 that that will tell you how to rule things today, that’s a pretty big leap. This leads me to a statement by Ruth Marcus and associate editor and columnist at the Washington Post that she made actually within the last week or two, that touches precisely on this fact about how should we be thinking about originalism? Why is a judge constrained to be trapped in the murky amber of 1791 or 1868?

Society has progressed since Black people were enslaved and women were chattel, since Flintlock Muskets gave way to assault weapons and extended capacity magazines, since worries about protecting the homestead yielded to privacy concerns over big data. The Constitution was written with the understanding that it would apply to circumstances not yet foreseen and with language flexible enough to accommodate them.

Heather Cox Richardson:

I do wonder, Joanne, as we watch what seems to be the disintegration of the idea of originalism in a number of different ways now, especially since we have so many originalists on the Supreme Court whose decisions are so out of step with the majority of Americans. If we’re seeing a new way of thinking about the Constitution through people like Justice Ketanji Brown Jackson, who’s focusing much less on the original founding than she is on the second founding, the 14th Amendment, and whether we’re going to be in a period when we look at not just the Constitution and the Reconstruction Amendments, but maybe add more amendments where we reconceive of the Constitution again in such a way that expands we the people even more effectively than it has before.

Joanne Freeman:

Which could certainly be the case because the fact of the matter is, to sort of gesture back towards where we started, the framers didn’t agree on what the Constitution was, didn’t agree on what it should do, assumed it would change over time, created an amendment process for that purpose. They didn’t assume that their words would be read in the way that originalists assume that they should be read. People always say it’s almost a cliche, it’s a living document, it’s an evolving document.

Heather Cox Richardson:

Now, I have to give one major caveat, and that is there is a move afoot among the right wing at the state level to call a constitutional convention to revise the Constitution. And that has people like me really, really concerned that they will throw out the Constitution altogether. The bottom line is that what our constitution is for all of us is a compact to live together and to figure out ways to compromise in such a way that we can all move forward with the same rights and the same opportunities, and we have never done it perfectly. But for the life of me, I cannot imagine a governmental structure that has more chance of making those things possible than a democracy.

Joanne Freeman:

There’s a reason why amending the Constitution is difficult. It’s not impossible, the process is part of the Constitution, but it’s difficult because it shouldn’t be necessarily easy to fundamentally revise not just the structure of the government, but along the lines of what you’re saying, Heather, the basis for we the people, right? The Constitution, yes, is a document that outlines a government sets things in play, but more than that, it’s a kind of pact. It’s a kind of agreement that we all in one way or another, buy into as American citizens; that we look to for an understanding of rights. And it’s grounded on faith in what that document intends and in the fact that other Americans join you in being a part of that pact.

When you see politicians who are undermining that pact, who are saying that it’s not worth trusting, who are saying that it can be actually thrown away, you’re eroding the faith of Americans, not just in the national government, not just in the political process, but in the actual thing that creates an American we of a certain kind. It’s not perfect. I’m not saying that it’s ideal and nothing should change, but at its heart there is we created that over time we’ve been working on and broadening and that we can continue to work on. But if you are saying things like we can terminate the Constitution or part of it, you are eroding the faith. I call it the thingness, the sense that the Constitution is a thing above other legislation, a thing above other acts that government acts on, and that it’s not something that can easily be terminated without dire consequences.