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tv   The Civil War Origins of Fourteenth Amendment  CSPAN  June 10, 2018 9:00pm-9:45pm EDT

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the 150th anniversary of the ratification of the 14th amendment. next, clemson university history burton talksal about the origins, and why it aftersential to ratify the south's defeat in the civil war and the abolition of slavery. this talk was part of a symposium hosted by the u.s. capital historical society. >> of vernon does it all. he is a one-man university.
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of thehe director inmson cyber institute and addition to that, received the dean's award in research from the college of architecture, art, and humanity. don't you do natural science as well? written at least 25 books or edited them. he has published more than 200 scholarly articles. to whoand i compete as can wear the best lincoln tie at conferences. i got mine at the capitol historical society. youin any event, i give vernon burton, who will tell you about the 14th amendment. [applause]
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you loweringte expectations. it is always a hard act to follow paul, and to try to get my timer on, and of course i can't. ok. thought the american south for 34 years of university of illinois, and then i wrote a book, the age of lincoln. to southved home carolina, where i had grown up. the land of lincoln. people in south carolina no longer cared for lincoln. that's even though i argued he was the greatest president, the greatest theologian of the 19th century, insignificant that he was a southerner. the cultural wars had wreaked havoc on our history, our historical memory, democracy, and our country. -- we need to
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recognize how general interpretation of historical events might differ. said thatlbert rewriting history is a good thing because we can make it better. that since an african-american had been elected president, we can say slavery never existed. although done in humor, there are indications that in the court of white popular opinion, as well as justices on the supreme court, this is to some degree happening. that interpretation of revisionist history has a relevance to the ongoing interpretation of the 14th amendment. there is a story of one man's way of changing his interpretation of events. this story occurred during reconstruction before the 14th
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amendment. a story i heard as a boy growing up in south carolina. the story goes a union company comprised of previously enslaved african americans was stationed all chronic small southern town immediately -- in a small southern town immediately after the war. town andhed into raised the american flag. directly across from the flagpole was the home of someone who had lost his sons in the war. the old man listened as the bugles blew, watched as the flag rose, and then yelled at the top of his lungs, "you damn yankees might have won the war, but the rebels beat the hell out of you at chickamauga." this unnerved the union officer, who warned him not to disrupt the ceremony. his routine continued and the officer marched the old man off to jail. all was well until saturday night when the rebel started thinking about sunday morning.
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a butler had always that in the third pew in church. when he could stand it no longer, they called and said the conditions of his release required taking an oath to the united states and that he could -- he would no longer embarrassed the morning ritual. butler agreed. monday morning, the bugler began, and butler let out with a yell. us yankees might have won the war, but those rebels beat the hell out of us at chickamauga. [laughter] usually, the definition of "us" who is "them" changes the story. my point is, the story of the 14th amendment is seen differently by different groups. that does not mean all interpretations are equal. facts need to be real. alternative facts without evidence are not historical. in what historians now call postmodern history, we can all
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agree what -- all agree that all interpretations are constructed, but it really does matter what the narrative is constructed of. i am reminded of the story of the three little pigs that i read to my children and of course now my grandchildren. and it does make a definite difference if you are constructing your story out of w, or sticks. the 14th is arguably one of the most important amendments to the constitution. it is my favorite one. when it was written and now, it has a great influence on the way american citizens live their lives and is cited more often in modern litigation than any other amendment. this is the sesquicentennial of the 14th amendment and there's still a lot to say about it. the 14th amendment has an extraordinarily wide range in its application and influence in the united states. but i want to focus on when and why the 14th amendment was created. spoiler alert.
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it was to protect the rights of the newly freed enslaved people in the south and to provide them citizenship rights. congress created and the states ratified the 14th amendment during reconstruction to protect a group of people who were formerly enslaved. today, i want to investigate just the first part of the story. there is a lot more to it, but we don't have time. after the civil war, the 14th amendment created possibility in -- created a revolution in the lives and possibilities of african-americans and all citizens. the definition of african american citizenship was set up by the supreme court in 1857. chief justice roger tony wrote that the decision in scott v , african-- sanford americans were not citizens and had no rights. dred scott v. sanford is the most reviled case in supreme court history and rightfully so.
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it is condemned for partisanship, inventing constitutional doctrine, and not so incidentally for hastening the civil war. above all, the case is forever infamous for the hateful words that african americans had no rights which a white man was bound to respect. if these words had been simply an historical observation, that would have been bad enough. but chief justice tawney used them or the unprecedented deed of fastening race discrimination squarely into the constitution. where it had never been. the constitution of the founding father included clauses drawing a line between slaves and free people. but chief justice tawney joined by a majority of the supreme court turned that line into a color line and declared the blessings of liberty promised by the constitution to all free people were somehow denied to all those of african descent , even if free and born free of
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free parents. what a heinous judicial crime. what led to chief justice to fill 25 pages establishing dred scott was not a citizen? surely not the limited question of whether scott had the privilege of bringing a suit in federal court. the answer seems to lie in certain articles, certain rights that article four of the constitution gives to citizens of one state traveling to another state, specifically certain privileges and immunities. worlds we were -- words we will later here carried over from article four and were included in the 14th amendment. he openly expressed his fear that if free blacks were citizens, their rights would include the following. what do you think about these rights? should they apply to all citizens? the right to enter any state wherever they please without passport, to go wherever they please at any hour of the day or
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night? full liberty of speech in public and private? to hold public meetings on political affairs? to keep and bear arms wherever they went? all these rights the slave states denied to african americans. the supreme court went with tawney. clearly if there were to be real freedom, that decision would have to be overturned. a new birth of freedom is what lincoln called for in his gettysburg address of 1863. i always like to show this. you can see the toll the war took on lincoln from 1860 to 1865. lincoln could see the american government might have to become a protector of liberty. but what was liberty after all? in 1864, lincoln told a group in baltimore that the world has never had a good definition of the word liberty and the american people are much in want of one. he told a simple story. the shepherd drives the wolf from the sheep.
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the sheep thanks the shepherd as a liberator, while the wolf announces him -- denounces him, especially if the sheep was a black one. clearly, the sheep and the wolf are not agreed on a definition of the word liberty. lincoln was grateful the wolf's dictionary had been repudiated. in reality, that repudiation is a never ending story still being told. the 14th amendment is still at the forefront of that story. in march of 1865, lincoln alluded to citizenip issues in his second inaugural. the inaugural began suspiciously before a set lincoln helped to design. behind him, the capitol dome was finished because he ordered the work continued throughout the war. that spoke volumes about federal power. in the speech, instead of cliches about piety, lincoln wondered daringly if god had sent the war as a punishment for
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america's transgressions. it was one of the most profound speeches ever delivered by a president. lincoln sought to come to terms with the tragedy that was also part of his set design. the amputees visible all over washington. a large number of former slaves crowding the capital, ny without homes or jobs. the sharpshooters lining the roofs to protect the president. near the end, lincoln urged americans to care for him who shall have borne the battle and for his widow and his orphan. today.ems docile to us it actually begins the nation thinking about the 14th amendment. lincoln would seek benefits for the widows of black soldiers, a courageous act because it recognized slave marriages as legal and implied african americans were entitled to full citizenship, a hope the 14th amendment would soon try to will -- soon try to fulfill with
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mixed results. lincoln knew that citizenship was necessary to protect one's freedom. he was killed for that idea. when grant accepted lee's surrender, lincoln delivered a speech from the white house to the gathering crowd. he spoke about the need of citizenship for african americans who fought for the union. he announced he expected to let some african americans vote. one listener at the speech, john wilkes booth, read his darkest fears into lincoln's vision. precipitated the final act. booth told his companion that is the last speech he will ever make, and it was. lincoln believed the emancipation proclamation was the central act of my administration and the great event of the 19th century. but i believe it was not the emancipation proclamation, but lincoln's belief in liberty. if you can take an ideal to
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ogy and putpol complete freedom over here, you can get an idea of where the emancipation is in terms of democracy. i think it is lincoln's legacy that is in the constitution that is most important. lincoln's devotion to our country's mission statement. lincoln worked to include in the constitution which is our country's rulebook. while he was still alive, he knew that the country needed more than a presidential proclamation of freedom. a constitutional amendment was necessary to ban slavery. in january of 1865 with the end of the war in sight, congress introduced the 13th amendment. the 13th amendment was approved by the senate and sent to the house of representatives, where republicans and democrats were split. democrats knew that slavery's day was done but thought emancipation should do no more than end bondage, leaving african americans as
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second-class people in a white man's country. the democratic party was solidly against it except for a handful of democrats whose votes were secured by president lincoln's message, dramatized in the steven spielberg film, "lincoln." the southern states fully expected to rejoin the union as invited by johnson. but the new president, a democrat who subscribed to the view that this was a white man's country, set virtually no conditions on their return to the union. johnson opposed nearly all efforts to integrate newly freed slaves into american life. he pardoned thousands of ex- confederates from the consequences of rebellion and returned them to the right to vote. he pushed to restore southern states swiftly to the union , effectively allowing southern
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governments free reign on race relations. he claimed to be protecting america not from back's confederates, but from radical republicans, radical because they called for equality, and their african american allies. southern states selected former confederate leaders to fill most of the seats they were regaining. when those men arrived in republicansd.c., rejected the credentials of all these rebel states. some called the 39th congress the rough congress, because about 89 representatives were not allowed. i find it profound that to get the 14th amendment ratified, congress had to expel the former confederate states and place them under a form of military occupation. freedom is a powerful engine. african americans began finding new freedom. getting married, searching for members of their families who had been sold.
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and yet, slavery's death did not automatically confer any rights of liberty on african americans. it only liberated th from a master. whatever meaning the 13th amendment may have had in january of 1865, the white south's reaction to the end of slavery changed the dynamics. the southern states enacted thinly disguised versions of slavery known as black codes. these systems gave white employers the power to whip. the power to administer moderate corporal chastisement. people could not travel without a pass, it became nearly impossible for african americans to rent land or seek legal redress against whites. blacks were not allowed to possess knives or firearms, to buy or sell alcohol, or
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preach the gospel without license from white authorities. in new orleans, the code declared free people of color ought to never insult or strike white people nor presume to think of themselves as equal to the white. the system would bind blacks to the land, impoverished, disenfranchised, and unorganized in perpetuity. the law took freedom from whites also. white people who might think differently were cap in line bylines of this code that prevented them from interacting with any black people on terms of equality. it was the southern reaction against the freed slaves that steadily and rapidly propelled the nation toward equality. northern republican outrage was typified by the chicago tribune. we tell the white men of mississippi that the men of the north will convert the state of mississippi into a frog on
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-- a frog pond before they will allow any such law on any land where the bones of our soldiers sleep and over which the flag of freedom waves. as such, southern action fueled the northern response. republicans in the midterm elections of 1866 made large gains. they then passed the civil rights act of 1866 and began by declaring african americans citizens of the united states, reversing the ruling in the dred scott case. the 1866 act went on to ban racial discrimination and making and enforcing contracts, buying and selling property, testifying in court, and generally guaranteeing to african americans the full and equal benefit of all law and protection against unequal punishment, pain, and penalties. the new act raised questions. was it constitutional? to eliminate this question,
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congress set to work on another constitutional amendment. the so-called runt congress proposed the 14th amendment and sent it to the states for ratification. i wish we had time to discuss john bingham, the chief drafter of the 14th amendment. deserves to be better known to everyone, certainly historians. there is a lot to be said there. let's take a quick look at the 14th amendment. the first sentence establishes birthright citizenship. which is a lecture unto itself. it is about 100% of the formerly americans were born in the u.s. you can see it is american exceptionalism. it is not something from europe, it came to the new world. the second sentence has been a major controversy ever since. it reads, "no state shall make
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or enforce any law which shall abridge the privileges or immunities of citizens, nor shall any state deprive y person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of laws." even today, people have differing views of what immunities and privileges are or what due process and equal protection mean. the lack of clarity meant that the supreme court and our court system would be involved in determining their meanings. section two of the 14th amendment ses like it tries to guarantee the right to vote. but it does so indirectly, not by granting the right to vote as such, but by reducing a state's number of representatives if that state denied or abridged the right to vote of any qualified voters. the united states has never enforced this. it remains unenforced today. the idea was to make up for the
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3/5 clause. this elimination was to give southern states a choice. universal's average, or lose -- universal suffrage, or become a minority in the government. section three of the 14th amendment dealt with the form of confederacy. section three would prevent those who engaged in rebellion against the united states to be members of congress unless congress approved them with a 2/3 vote. in 1872, congress did soften that impact and allow all secessionists except the top officials to hold public office . section four disallows payment of confederate debts. they were illegal and void. when the u.s. had its new constitution, the question of debt was a major issue between thomas jefferson and alexander hamilton. if any of you are familiar with the play hamilton, it was settled in the room where it happened.
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that was a matter of honor. in 1868 as well as in the 1700s, the former confederacy was not allowed to pay its debts. now, section five is essential. it gave congress enforcement power using the language that is in the 13th amendment as well and stated congress shall have power to enforce by appropriate legislation the provisions of this article. the reconstruction amendments provided sovereign power to the federal government over the states and their subdivisions. mississippi legislators feared the enforcement clause of the 14th amendment would be a dangerous grant of power and might admit legislation in respect to inhabitants of the state. the legislature in both alabama and south carolina were alarmed that the 14th amendment gave congress the power to legislate upon the political status of the
9:24 pm -- they were correct that the amendments were a transformation on the need to limit power. the bill of rights protected the people from governmental powers. amendment one begins, congress shall make no law respecting. the first amendment creates an understanding that the government, by nonaction, protects freedom. the other revolutionized freedom in the united states by assuring it was protected by law. each of the three reconstruction amendments, the 13th that outlawed slavery, the 14th that granted equal citizenship to people born in the united states a insured due process, and the 15th which granted the right to vote to all male citizens, all specified that congress shall have power to enforce. with these amendments, the constitution was fundamentally altered. the extent of his citizens
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social and political rights and whether those rights were separate or unitary remained open. because edition now permitted -- federal government committed the power of the federal government to the equal extension of these rights. congress sent the amendments to the states for ratification. many states refused to ratify. texas, virginia, louisiana, delaware, and maryland. states pursued significant political change, might have been delayed in the south or derailed altogether. as it was, james garfield of ohio, future president for a brief time in 1881 before being assassinated, declared military authority was needed "to plant liberty on the ruins of slavery." congress felt bound to a higher purpose. as a result of southern states' refusal to ratify the 14th amendment, congress enacted the reconstruction act, putting the
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rebel states under federal military control. the reconstruction act authorized new state constitutions and united states military commanders took charge of registering alls elect delegates to state conventions. senator charles sumner, ardent supporter of black rights, believed the ballot ensured african-american citizenship and effective protection against white supremacy. believing suffrage would be immortal, he naively thought the right of suffrage once given can never be taken away. across the south, whites thought newly freed slaves would not bother voting were proved dramatically wrong. african americans responded overwhelmingly, often marching to the spot where they had been whipped or sold, and cast their ballots. the reconstruction act provided for universal male suffrage. the state constitutions, most of
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them adopted in 1868, were forward-looking, providing public schools for the first time, married women's rights, among many other things. the new state legislatures ratified the 14th amendment. kentucky did not ratify until 1876. some northern states balked as well. new jersey withdrew ratification in 1868 and ratified only in 2003. morgan also withdrew -- oregon also withdrew ratification and only ratified in 1973. ohio actually rescinded ratification in 1868 and only ratified in 1983. -- in 2003. if the 14th amendment have been effective, there would be no need for the 15th amendment. that was not to be. compelling forces articulated the basic requirement of suffrage. african-american leader frederick douglass declared the right to vote was the keystone of the arch of human liberty. it became clear to the majority
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the constitution should include a new amendment guaranteeing the the right to vote, and that becomes the 15th amendment. the constitution now to find the -- now defines the new birth of freedom. citizenship and the right to vote. with citizenship secured by the 14th amendment and the right to vote with the 15th amendment, african americans can protect themselves from their former owners with the rule of law, by standing for political office, and could choose their own leaders with free debate and honest ballot. with citizenship and voting rights in the 14th and 15th amendment, black political participation mushroomed. voting was followed by office , also state legislative seats in states. two black mississippians and 14 were u.s. senators and 14 served in the house. they were almost entirely republican and joined by white allies in the republican party. i'm going to take a moment to talk about how important
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language is. southern whites who supported equal justice were labeled with the word scalawag. try to say that. it is a horrible sounding word. it's like you've got a persimmon in your mouth. language is important. carpetbaggers. there were some who were greedy and came to make a fortune and supposedly carried all of their belongings in cheap carpet bags. this is the image that was there. but also, there were others that these were were amazingly brave people. teachers who came to start a school and teach former slaves in south carolina. their lives were rough. they dedicated their lives to this. lauren towne stayed her whole life in south carolina working at penn school. i want us to remember that. the word i hate the most is the term used for the overthrow of
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interracialate government. we use the word redemption. to a person of faith like me, it bothers me. it is a restoration. this was a terrorist overthrow, in fact, to pull back the progress made by the 13th, 14th, and 15th amendment. with the overthrow of reconstruction was the work of unlawful whites because they could not tolerate african-american political strength as well as any economic progress former slaves managed. was always a component, but the terrorism expanded as southern slave owners no longer protected african-americans. the clan attacked the fledgling democratic institutions.
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it began to create night writer gangs. at american -- african-american churches. they avoided clashes with federal troops. supreme court justice samuel miller wrote his southern brother-in-law challenging him. show me a single white man that's been punished for murdering i get -- for murdering a negro. thisodern equivalent of terrorism would be afghan or sooner -- or syria. white murders of black citizens and their white republican allies, one sided. we tend to think terrorism begins with 9/11 but
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african-americans lived in a terroristic society at least 1975 and in some aspects, cents. -- we would think of terrorism in the united states as 9/11, but it was at least until 1865. new federal laws adopted after the 14th and 15th amendment were enforcement and protection. it also contained a new innovation, a section aimed at private terrorism making it a federal crime to conspire or go in disguise for the purpose of interfering with any person's free exercise of any right or privilege granted by the constitution or laws of the united states. now, i was always told to say in conclusion to give the audience some hope. [laughter] prof. burton: let me list the some few of the many supreme court cases that involve different interpretations that challenges the 14th amendment to show you how it has changed over how it was originally constructed.
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in 1856, the 14th amendment ruled corporations were people. in 1954, the court used the 14th amendment in the brown v. board of education, also in ferguson which used the 14th amendment. it was the basis of baker v. carr that legislated bodies must be one person, one vote. in 1971, the court held a discriminating against women violated the 14th amendment. in 1973, roe v. wade case was based on the 14 amendment in 2000, the supreme court decided the presidential election was basis of the equal protection clause in the 14th amendment. in 2014, due process clause and equal protection of the 14th amendment is a fundamental right to marriage. in 1978, there were a lot of other cases we could go into -- the case restricted affirmative action in college admission based on the 14th amendment. some justices declared it forbid affirmative action. it was used to challenge the redistricting that increase the opportunity for minorities to elect candidates of choice. a group of people denied freedom for 240 years of slavery because of their race and denied opportunities for at least another 100 years and now used to prevent remedial help because it take account of race means the constitution is not colorblind. this maintains the status quo of white privilege.
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let's not forget revolutions do go backwards. this story of a successful implementation of the 14th amendment stands as a warning for today's voters and court interpretations. nevertheless, let us and on a positive note. the constitution of the united states with the 14th amendment's guiding privileges is still a legal foundation of a new birth of freedom. i want to paraphrase the last
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sentence from my book, "in the age of lincoln." a lincoln quote, he said it "if we can define the problem, then let us find a way to solve it." thank you. [applause] prof. burton: i hope we have time for questions. i would much rather engage. i don't like doing a paper like this. but i love the engaging. you can't hurt my feelings.
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please. if i did not offend someone, i failed. we have five girls that think their dad can walk on water until they are 12, and then daddy cannot swim. you cannot hurt my feelings. believe me. my daughters have me well-trained. yes? sorry, back here. >> do you think about why the states ratified the 14th amendment, that they realized it was -- were there other states besides illinois that eliminated their black codes? did they realize they would need to eliminate their black coats? black codes?
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prof. burton: there are two things that came out of the civil war. we focus a lot on that hate. it was certainly there. you have a little bit on both sides. you cannot have war without the other side. but, the other side that came out of it was idealism. the lincoln spirit was called upon their weather or not. people called on. again and again. i think it was done because of the intransigence they had seen in the south, and the violence. each state, you have to look at it individually. originally, republicans had been very successful in the first part of reconstruction and elections and things. that changes with different
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elections. grant comes in of course as president after johnson. he is a war hero. rightscommitted to black . hesewhat wcall the kkk or enforcement clauses. you shut down the clan in south carolina in the 1970's. -- he shut down the klan in south carolina in the 1870's. some $3 million had been invested in the south to observe elections. that is not a very good answer, but yes. there were debates, but i think the idealism that came out of the civil war and seeing what had happened from the reports in the north -- a huge number of people were killed. i'm not sure the number, but at least seven. south carolina state legislators were murdered. can you imagine -- these were all on one side -- what it meant
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-- the bravery -- you know, to be a state legislator at that time as a republican in the south? that really angered people in the north to see this. it was not the same as the civil rights movement where they were actually -- you could see what was going on in terms of the violence. there were reports and things like it. >> you had a fascinating tease about john bingham. a person i am not familiar with. and would love to read more about. can you make a reference to a good source of information about him? prof. burton: do you remember the name? it is not well-known. he is very important because he made very clear what he thought the 14th amendment was about. >> there is actually a new biography. by i think it is gerard maglione. we will get you references.
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prof. burton: thank you. >> nyu press. prof. burton: i have been advocating people to do to a biography for a long time. i'mor i missed it. he is fascinating. it is clear what he meant for the 14th amendment to be. i was teasing about how it was interpreted later, but the enforcement clauses. he basically said in his testimony you should take the bill of rights and apply it to as well.izenship that you would have those rights as a state citizen. sorry. >> one of the most unacknowledged things without abraham lincoln, it was the union veteran black-and-white.
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they were a tremendous political force. in terms of what happened with that, i think it was a very important component in relation to that. prof. burton: you are abso right. they used the martyred lincoln a way to do it. literally, lincoln on good friday was not unnoticed by everyone. it was almost a religious -- they pick that up for the 14th and 15th amendment. father abraham or this christlike figure has died for these rights. they actually got on the ground and make that happen. it is an important component. and new jersey rescinded the ratification of the 14th amendment. it is interesting when they klan headed second rise to power in the early 20th century both new jersey and oregon had significant rise of the power in
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relation to that. prof. burton: the klan is reignited pretty much by the movie "birth of a nation." but it is in some ways anti-immigration. i had some i had to cut out about the similarities. you want to be careful about making comparisons, but the uneasiness of the time of immigration and those sort of things, and the rise of these kinds of groups like the klan. ank you. >> this will doubtless be a subject of future symposia of u.s. capitol historical society. could you give a brief answer as to why support for vigorous enforcement of the 14th amendment was gone and vanished for almost 90 years? prof. burton: there is no brief answer, i can assure you that. [laughter] prof. burton: i can say that
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grant actually want to do but the election changes. one of the questions i always used to ask my students -- i don't think the first reconstruction was a failure at all. i thought it was an incredible success and that is why you have a terrorism overthrow it, because it was working, not because it was failing as we sort of picked up the pocketed version of the. i would ask to compare the first and second reconstruction. in the second reconstruction, people could see children being water hosed. they could see docs. not leave, they did how horrible it was there at the time. there are a lot of reasons. the republican party shift from what was always the party of property, as well as law and railroads.
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but as labor in the north begins to make demands, as labor in the north goes on strikes and things, that is equated with african-americans who were actually on strike for labor there in terms of rural agriculture. so those sort of inflate. there are a lot of things going on. it is a complicated story. people say, we are tired of this. whate tired of supporting it would take to make the white south. it was e.g. just to walk away from the idealism that was there earlier. not a good answer, but that is it. >> we are not tired of listening to vernon. unfortunately, we are out of time. we are supposed to start our next session two minutes ago, but we will start it in seven .inutes at 25 of we will take a little bit of lunchtime away from everybody.
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