tv Lectures in History Reconstruction Americas Story CSPAN November 20, 2022 8:02am-9:10am EST
all right. hi and welcome to today's. so in less than an hour i'm going to give you the argument of book. i'm going to give you new way of thinking about american and american identity. let's start with the old way, which is what i call the standard story. the standard story tells. us american history starts in 1776 with the declaration of independence, the declaration articulates the fundamental american of equality with the startling new proposition that all men are created equal and the american patriots fight for that ideal and the revolution.
they make it part of our higher law in the constitution written in 1787 and our since then has been a moral less steady progress towards realizing this ideal. now the standard story admits we've fallen short, but we're moving forward. and you can look at key moments in american history, where americans come together in the name of this ideal and it guides us forward. 1776 of course with the declaration 1863 with the gettysburg address. when lincoln tells us that america is dedicated to the proposition that all men are created equal. in 1963, when luther king calls on us to rise up, live out the true meaning of that phrase. so that's our fundamental principle guiding us since the beginning. three important structural points this story. before i start, look at it more critically. the first is it looks back.
it says our ideals there at the very beginning. in 1776 thomas jefferson told us what it means to be an american. second, it's a story. this ideal guides us through the of our history. and third, it's a story of continuity. it says we are connected to the founders by this ideal, by our continued adherence to the principles of the declaration declaration. as lincoln says, it's the electric cord that links us over, the generations. we are the same that we've always been. now, why does this story matter? well, national stories are important. not every nation has in the same way that we do. but we need one more than other countries to maybe. so we use this idea of an american identity. that's rooted in values, not in blood, not in geography. to bring us together to inspire
us, make sacrifices in the name of our shared ideals. so it's important have an agreed upon understanding of who we are. of what our values are. of who are the heroes and villains of our story. and what we need to do to be good americans. and this standard story worked, at least for some people, at least for a while. but it's not working anymore. and the main reason it's not working is that it's not very accurate. so some people have been challenging it demanding that it be told more. but as it gets more accurate. it gets less inspiring. and this the conflict that we're seeing play out across the country now with, the so-called anti critical race theory bills. this is why public schools are banning the discussion of certain topics, why they're banning certain books. banning the 1619 project, for instance. they're trying to prop up the standard story.
and the clearest proof this is about the standard story is maybe a florida law that is not a you can't say this kind of law, but a, you must say this kind of law. and what must teachers say very clearly it's the standard story. this florida law says american history shall taught as the development a nation based on the universal principles of the declaration of independence and actually bans my book. they haven't mentioned me by name yet. but if you're looking for a list of banned books, i'm banned in florida. so what is the problem? this story in terms of accuracy? well, actually, just about everything. and in the book, i go into this more detail. but in an hour long lecture, i'm just going to hit the high points. so let's look quickly at these different elements of the standard story. the first one, which is probably the most important, is the idea that the declaration states are modern ideal of equality.
what does all men are created mean to us today? something like all people deserve equal treatment by the government. maybe or at least they deserve equal and respect. so all people are of inherently equal and the government should recognize that. but that's not what it meant in 1776. to the people who wrote and read the declaration. then and i'll tell you what it did mean in a second. but to start i want to explain how we can be pretty confident. it didn't mean anything like modern ideal of equality. so first, this idea of universal under law would have been pretty startling. in 1776. and the standard story says that its interpretation. but this is actually a point against it. so no government in the world followed that principle or ever had. so it wouldn't very persuasive to put it forward as a self-evident truth. and in fact, jefferson was not
to be novel. he was trying to show that according to generally accepted principles, the colonists were justified in declaring independence. his goal, he said, was not to find new principles or new arguments. never before thought of, but to place before mankind. the common sense of the subject. and contemporaries didn't think it was novel either. people just didn't pay much attention to the preamble. in 1776. and then second, going back to point about no government following it, the colonists were not treating everyone equally. they were denying equality under the law in a pretty striking way. they were enslaving people and the modern reading of the declaration, of course, is inconsistent with slavery. so on our modern reading it starts out with the colonists branding themselves as illegitimate oppressors. that doesn't make a lot of sense. it would be very strange to
start the declaration with a principle that condemns something colonists themselves are doing. and we can see this even more clearly if we look, at the process of writing the declaration. because jefferson's first draft included, a complaint against king george that sounds like a criticism of slavery. it condemned him for engaging in the atlantic slave trade and introduced slavery to america. now this isn't quite the same thing as a criticism. maintaining slavery in america. you could be against the international trade and still think american slavery shouldn't be abolished. but even this indirect criticism was too much for the continental congress, and they took it out. so so there's really no way they would have left in as the first self-evident truth, a principle that condemned slavery in america. so what did all men are created equal, mean in 1776? if not that government should treat all people equally, it
meant something very different and much more limited. it meant that in a world without government or laws, the hypothetical world that philosophers called the state of nature no one had an obligation to obey anyone else. if people just popped into existence and world. if they were created as, the declaration says no one would have legitimate authority over anyone else and all men are created equal is the starting point for a theory where legitimate political authority comes from. what it's doing basically is denying the divine right of kings. it's saying some people not chosen by god to rule legitimately over others. and jefferson actually confirmed this in his later writings. he restates the principle. he says the mass mankind has not been born with saddles on their backs, nor a favored few booted and spurred ready to ride them by the grace of god. so if it doesn't come from, god,
where does legitimate authority come from? the declaration gives an answer, which is basically a very standard form of enlightenment social contract, which was the dominant political philosophy of the. 18th century. in hypothetical state of nature, people free and equal, but they're not safe. they have natural rights to life and liberty. but other people might violate those rights. so people come together, form governments to protect their rights through collective action. society is basically a mutual self-defense pact. governments are formed to the rights of the people who form them and consent to subject themselves to the government's authority. so that's what makes a government legitimate, according to the declaration, it's formed by consent and it protects the rights, the people who form it. and if the government fails in its purpose of protecting their rights, people have the right to
alter, abolish it, and make a new one. that's political theory of the declaration. that's the preamble sets out. it's very conventional. in 1776, which is why people didn't pay much attention it and then the rest of the declaration goes on to argue that british government is not protecting the rights of the colonists. in fact, it's oppressing so they can reject its authority and make new governments. now, what does this theory mean for slavery? well, less than you might think. it means that the government shouldn't enslave its own citizens. the insiders, the people who form the government. but it mean that the government shouldn't enslave outsiders. people who aren't part of the political community and the insider outsider distinction explains the colonists could complain that king george was figuratively trying to make them into slaves while they literally enslaving other people enslaving your own citizens delegitimizes
the government. enslaving outsiders. now theory of the declaration does mean slavery is not the exercise of legitimate political authority. but no one thought it was no. one defended it on that basis. everyone. slavery deprived people of a natural right to liberty. and the question was whether that deprivation was justified. but of course, now we easily see that it's not. but this contested at the time. people argued about it. defenders of would say things about the benefits of christianity or civilization. or they talk about inherent racial differences, as jefferson did. and these are terrible justifications, of course. but the point is, they're part of an argument that the declaration just doesn't engage. the declaration is all about the rights of insiders. it mentions outsiders three times. but not to consider their rights.
it brings up three groups of outsiders. all them are presented as threats. as people who are going to kill the colonists. in fact, so these outsiders or, the hessian mercenaries that george is bringing across the sea to complete works of death and destruction. the native americans. he is encouraging attack the colonists and the declaration calls them merciless savages. and the enslaved people that he's encouraging to rebel. that's the last. the greatest against king george. he's encouraging domestic insurrections. so the basic point there is the is not an anti slavery document in 1776. it does not contain modern idea of equality under law. and another point which will be important later, it's pro-democracy either we tend to think of it as proto ocracy, but that's really mindless. because there isn't even a phrase to to in support of that idea. what makes a government
legitimate, according to the declaration, is formed by consent and it protects natural rights of the insiders the people who form it. that's a monarchy. even a hereditary monarchy can do that. and that's the colonists couldn't just say that george was illegitimate because he was a king. they had to show that he was a tyrant. so our misunderstood ending of the declaration is the main problem with the standard story. because the story takes the declaration as the foundation for basically everything else. but i'll say a little bit the other elements too, because they reveal other problems, was the revolution a war for the principle of equality? was it an inspiring struggle for the liberty of all? not really. different people had different understandings of the revolutionary ideology, and some people did think about it terms of universal rights. but the picture is mixed. and it doesn't favor the
colonists. the best way to see this is probably to consider the relationship between revolution and slavery. slavery is the most extreme denial, liberty and equality that you can imagine. so how people acted with respect to it tells you something about commitment to those values. so what happened? enslaved people during the revolution? well, some enslaved people fought for the patriots and some them were rewarded with freedom. but some of the enslaved people were there, washington's army, because the colonists were allowed to avoid military service, providing substitutes. and some them substituted the people they enslaved in south carolina. the colonial government tried to white men to join the fight for liberty by promising to give them if they signed up. far more of the people enslaved by the americans joined the british forces. lord dunmore formed what he called an ethiopian regiment whose uniforms included sashes that said liberty to slaves.
the british engaged in mass emancipation, which the americans was appalling and complained about in the declaration and elsewhere. and after the war, the treaty of paris contained, the demand that the british withdraw from the colonies without carrying away what the treaty called any or other property. now, british defied that. they didn't return. the people that they had promised freedom and united states diplomats tried for decades to make them pay. so the revolution is not that inspiring as a war? the are focused on their rights and their sense of being oppressed and they're pretty blind to ways that they're repressing other people. what about the third part of the story, the 1787 constitution? well, standard story tells us that the constitution is a way of achieving the ideals of the declaration, the promotion of equality or the protection of individual rights. but this is also far off.
if you think about it, the 1787 constitute is not about individual rights. it's actually not about individuals at all. it's basically designed to create a government that can make the states cooperate when necessary, and it can handle issues that can't be left to the states. that's not at all the kind of government that the declaration describes the governments in the declaration are protecting the natural of individuals from other. and the 1787 constitution doesn't do this at. there is not a single provision in the 1787 constitution that puts limits on what an individual can do. and the federal government, the 1787 constitution creates isn't in the business of protecting natural rights of individuals either. congress can't make it crime for one american to kill another. it can't engage in the most protection of, natural rights. in fact, there's only context
where the 1787 constitution pays attention to individuals, depriving other individuals of natural rights. it recognizes that some people are taking away. other people's liberty, that some people are enslaving other people and it pays special attention to slavery. but not because it's trying to protect individual rights. it pays attention to slavery because slavery is a source of interstate conflict. so the constitution tries to manage that conflict and it manages the conflict by protecting slavery. it protects the international slave trade from congressional interference until. 1808. it strips states of the power to determine the legal of people within their borders by providing that enslaved people who escaped to free states cannot free and must be returned. and it rewards slave states with extra power in the federal government, representation in the house of representatives
based on their free population. plus 3/5 of their enslaved population. and because the number of representatives is used to calculate number of electors. this spills the election of the president because the president nominates judges. it spills into the judiciary, too so every branch of the federal government has a pro-slavery tilt. so founding america. the america of 1776 and 1787, really a great place to look if you're trying to find our commitment to and universal liberty, the ideology of founding america is what i call exclusive individualism. exclusive because there's a strong distinction between insiders and outsiders that is crucial to the theory of the declaration. the duty of the government is to protect the natural rights of insiders and the outsiders in the declaration. all threats to the lives of the colonists. the 1787 constitution is exclusive to.
it has a rule that black can never become citizens of the united. surely some of you have the reaction. wait that's not the 1787 constitution. that's the supreme opinion. and dred scott and everyone. dred scott was wrong. well, i'm not so sure about that. dred scott is an evil decision. yeah, but that doesn't mean it's wrong. it might be a correct interpretation of an evil document. the 1787 constitution. clearly does have some evil, pro-slavery provisions in it. and maybe scott was right. but there's a more important point. dred scott was a seven to decision. maybe those seven justices were biased justices. let's grant that. but now you need to ask, how did we end up with biased, pro-slavery justices on the supreme court? the answer is, they were appointed by pro-slavery presidents who were elected in
part because of the 3/5 clause. so scott is not the product of racist individuals. dred scott is the product of systemic racism and the system is. the 1787 constitution. so exclusive individualism means a strong and a racialized insider outsider line. that's the exclusive part. the individualism means that the duty of the government is to protect the rights of individual insiders. and basically what that amounts to is anti redistribution. the government cannot take from one insider in order to give to another person. now, as i describe it, that might not sound so bad. it means basically the government can't favorites among the insiders. it has to treat them equally, you might think. but that's not quite it. anti redistribution means the government has to treat insiders
neutrally and neutrality is very different from equality. if you start from equality neutrality might maintain it it will prevent the government from producing inequality anyway. but if you start from or if inequality develops over time and it always does, then neutrality locks that inequality. neutrality stops the government from addressing it. it stops the government from promoting equality and. that is the theory of the declaration of independence. the government is supposed to protect natural rights of the people who formed. it can't infringe on rights to benefit outsiders, and it can't infringe on their rights benefit other insiders. if all it's doing is trying to make people equal. now the declaration, of course, isn't law, but this theory has commanded a majority of the supreme court twice when the justices said the constitu lution embodies it.
first example is lochner against new york, which is a famous case in the legal community, but not as well known outside it. in that case, the supreme court struck down a new york maximum power law for bakeshop employees because it was benefiting employees at the expense of their employers. there is benefit in some insiders at the expense of others and it was trying to promote equality which the court said is not a legitimate goal of government. interestingly, the legal community said, but maybe not that well known outside. but the other decision where this won is a decision that everyone knows. it's the one i just talked about. it's dred scott freeing enslaved people is benefiting outsiders at the expense of insiders. and according to the declaration of independence no legitimate government would such a thing. so the theory of the declaration of independence, if you take it the way the supreme court has taken it, if you take it the way it was, understood 1776, it says
the government cannot try to promote equality and it says the government cannot abolish slavery. those are just facts about our constitutional history. that is what the supreme court has said in cases where the declaration has guided the outcome. but of course, that's not how we understand it now. we understand the to be anti slavery and pro equality. so where did understanding come from? the answer is pretty simple. it's abolitionists in the 1820s as abolitionism is gaining steam. people are looking a federal document to enlist in their cause. 1787 constitution is not a very good candidate. it's actually pro slavery. as i said, it's pro-slavery. that abolitionist william lloyd garrison publicly burns a copy, calling it a covenant with and an agreement with hell. the declaration of independence does at least talk about people being created. so the opponents of slavery to it and eventually the efforts of
abolitionists, both and white and the republican party and. abraham lincoln, a different ideology emerges. this is what i call inclusive equality and. it's basically the opposite of exclusive. individualism. the inclusive part means outsiders can insiders maybe states can't keep people out their political communities. maybe anyone born in the united states is a citizen. and the equality part means that the government should treat people. and that redistribution. okay, the government can act to promote equality. it can take from people who have much. and give to people who have little. and if i ask you now which of these visions is our america exclusive individualism or inclusive equality, you'll probably say inclusive equality. and the answer is maybe it was once. it could be if we make it so.
but right now, america is locked. a struggle between these visions, as it has been for about 200 years. and part of what i'm trying to do is to give you a clearer picture of that struggle. and if what we have to do if we want equality to prevail. so now i shift basically into the second half of the lecture. first half is telling you why the standard story isn't accurate and answer is it misrepresents founding. it tries to tell you that a society that was built on exclusive individualism was actually devoted to inclusive equality. that's just not true. the second half is about how equality emerged and fought and won for a little while. and what that means for who we are and what our story is. so the inclusive reading of the declaration emerges, i said with abolitionists and it's embraced by the republican and eventually it wins.
it wins in the civil war. and now we need to talk about how it wins and who it and what that means. so what was the civil war about what were the two sides fighting for? to figure this out, it helps to distinguish between two different kinds of revolutions. one is what i call a regime revolution. this is typically an attempt to take over entire country. and it's basic is the existing regime is unjust and it must be overthrown. so you could think about russian revolution overthrowing the czar or the french revolution overthrowing, the monarchy. the other is a status quo revolution, which is more often a secession movement. it's an attempt to separate. and the basic argument here is the existing regime is but people are being denied what they're do under it. now, how do the american
revolutions into this framework? the first american revolution in 1776 is a status quo revolution. the colonists basically complaining they've been denied their rights as englishmen and they're not trying to destroy the legal order just to separate themselves from it. the civil or the second american revolution in 1861 looks very much the same from the confederate perspective. they don't say there's anything wrong with the constitution as they understand it. they that free states and, the federal government are twisting the constitution and denying the slave states, the rights they were guaranteed when they joined the union. the secession acts of several states offer to form a union. other seceding states on. the basis of the principles of the us. and when confederates write their new constitution, it's basically the same as the 1787 constitution. really what they do is they make
their of the 1787 constitution explicit. so it starts out we, the people of the confederate states and it specifies the constitution is, the act of the states in their sovereign capacities, not of a single people. they remove general welfare as a goal. and the preamble the us constitution has. they that to prevent redistribution like disaster relief. they put in explicit protections for slavery. their must recognize slavery and confederate territories and citizens can take people to any state without them becoming free. but it's pretty close to the 1787 constitution. it's their version, the status quo. what they think they're entitled to. and from lincoln's perspective, the war is also a war. the status quo. at least at the beginning. lincoln's first inaugural says. he has neither the right nor the inclination to interfere with slavery where it exists. he accepts the idea an amendment
entrenching slavery even after secession. he says restoration of the union is the goal. if you could save the union without freeing any slaves, he do it. the preliminary emancipation proclamation issued, september 22nd, 1862, says hereafter as before the war will be prosecuted to restore the union. it's a threat to the rebels if they do not end the rebellion, the people they will be freed. but it's also offer, if they lay their arms, they can keep slavery. so at the beginning, both sides are fighting for their understanding of the status quo. at some point, the and probably the best point is some time between september 1862 and january first, 1863, between the preliminary the final emancipation proclamation. one side changes its mind. the status quo revolution turns into something else. it turns into a regime change revolution.
but not on the confederate. on the side of the united states. the confederates are still fighting their status quo revolution. they're trying to separate and enjoy the rights that they bargained for when they signed up. but is leading a regime change. the existing regime must be overthrown because it is unjust and the existing regime here isn't the confederacy. it's founding. america. one way to see this is to ask in the civil war, whose side are the founding documents? whose side is the declaration of independence on? lincoln says it's on his side, of course, in the gettysburg address. he says he's fighting for its central value of equality. but we've seen that's not its central value. not in 1776. its central then is actually something more like national self-determination. people can decide their government isn't doing what it was supposed to and they can change it. that's what the american
revolutionaries did. that's what the secessionists, too. and they said this. they published of causes explaining why secession was justified. and they often invoked the declaration of independence in the name the declaration of independence. they said, we declare our independence pretty straightforward. lincoln, by contrast, was saying more like in the name of the declaration independence, which says that just comes from the consent of the governed, that people can change their government. i not let you change your government. i will use military force to compel you to stay the union. and then i will remake your society against your will without, your consent. so who a better claim to the declaration? that's not really close. and i also think it's closer. it's less clear. but i also think the 1787 constitution is on the side. the secessionists. the for that is the 1787 constitution thinks of the
government as a threat to, individual rights, and it thinks the states, as their protectors. so if the federal government starts to behave tyrannical, the states fight against it and federalist 46, written virginia slave owner james madison explicitly says they will win just like they did in the revolution. what would happen, he asks, if it came to force 13 states against the national government. the states would win. now, amazingly that's exactly what happened. if you accept the confederate to kentucky and missouri, 13 states fought the national government. the first flag of the confederacy by way, is 13 stars in a circle with, red and white stripes in the background. just like the betsy ross flag of 1776. now, of course, for the confederacy, each star represents a slave state, whereas with the betsy ross flag. oh, wait, that's also, 13 states
that recognize slavery. so the civil war is kind of a replay of the revolution. it's what madison predicted. except he was wrong about the outcome and the national government won. and what that should you? is that from the perspective of founding america three of whose first four presidents were slave owners from virginia, including james madison, lincoln's side in the civil war is the bad guys. and that's clearer, i think during reconstruction. so here's some that maybe you weren't taught how are the reconstruction? the 13th, 14th and 15th ratified. well the 13th amendment, of course, you know that banned slavery. congress, it it goes out to the states and it's ratified by three quarters of them. the defeated confederates accept that slavery is over, at least in name. but they try to restore it in practice with overtly laws that tie the formerly enslaved into
service contracts, low wages and deny them any rights. congress passes civil rights acts to, wipe out that discrimination. and one of the things those acts say is that anyone born in the us is a citizen. but it's not clear that congress can actually do that. it goes against the dred decision. so the supreme court might it's unconstitutional. and also, if the former confederate states send their senators and representatives back to congress, they might take control and repeal civil rights act in a sort ironic twist. the fact that has been abolished gives the south more power in congress because now the 3/5 compromise has been superseded and the formerly enslaved are counted as full persons. so congress decides these acts need to be made part of the constitution. that's what the 14th amendment does, at least in part. it grants birthright citizenship. and then it says that with
citizenship come rights to liberty and equality, that the have to respect. this is a massive on state authority. states can't decide anymore who is part of their political community. who gets to be a citizen. they can't draw the inside or outside our line. and they have to treat people equally. the 14th amendment is going to take regime of exclusive individualism and turn it into one of inclusive equality. the former confederate states don't that and they say no. so this is the part of the history that i expect you probably didn't learn in great detail. i don't think that we teach it the way that we should. the former confederate states, the states that seceded and then ratified the 13th amendment, they reject 14th amendment. ten state legislature vote against it by 1867. it is clear it not get the required three quarters of the state's voting in favor. and this is where things get
really radical because congress in response simply those states. it declares that no exist. it puts them under the control of the us army. there are no state governments. there aren't even states. there are five military districts in, the south and then congress makes new states. it orders the people of the south to hold constitutional conventions and write new constitutions and make new legislatures. but the people who are doing that are not the same people. who made the old states? the formerly get to vote for delegates to the conventions and participate in them? congress says the former confederates do not. so has not only said who's going to be a citizen of these states, it said who gets to exercise political power. these are really new states. the name is the same. the geography is the same. but the political community is totally different. it's a revolution from above and
it's a regime revolution. and these new states are ones that ratified the 14th amendment. so if you look at the state legislatures, it's pretty clear they are different. the legislatures that seceded in 1861 are all white and all democrats. the legislatures that ratified 13th amendment are all white. and still almost all democrats. but the legislatures that ratify 14th amendment are racially integrated, and they're all republican. that ratification, i say, is what makes our new reconstruction america. so i said the civil war might look bad from the perspective of founding america, right? maybe the national government is the bad guys. the bad guys won. well, what about this? what? madison and jefferson and the rest think about congress annihilating states, dissolving their governments, replacing them with different ones. i think it's pretty clear they would been appalled. the national government usurping
state authority is the founding fear. dissolve having legislatures is actually one of the complaints in the declaration against king george. and even we're just concerned about legality. it is not at all clear that the reconstruction act, which wipe out the state governments have a basis in the constitution. if the civil war was not bad. this is definitely madison's come true. so our standard story says in the civil war founding fights against this deviant institution of slavery that somehow popped up. despite its obvious, with america's deepest values and founding america wins the war. and it's an interesting question who is it fighting against? and founding america is redeemed. and i am saying no, that's not what happens. founding america and it is destroyed because founding america is very.
like the confederacy, not just because every state recognizes in 1776, but it shares the ideology of the exclusive individualism. lincoln's revolution, which eradicates slavery and replaces exclusive individualism them with inclusive equality, didn't just destroy the confederacy. it destroyed founding, and it put reconstruction in america in its place and reconstruction. america is our america. so we are not the heirs of the founders. we are connected to them. we are the heirs of the people who defeated and the. so what's the big take away from the second part? well, the standard story had some nice features, right? it had a short document that states our ideals. that's the declaration. independence. that's handy, right you can memorize it. and it had war that was fought for those ideals. the revolution that's inspiring. you can see people put their lives the line for these values. and it had a longer document that gave them the force of law.
that's the 1787 constitution. and that shows a real national commitment. so none of these things are true. but what i've just given you is different story that has same ideals of equality and the same features and is true because the gettysburg is a short statement of. our values you can memorize, people do memorize it. the civil war is, a war for them where people laid down their lives for freedom and equality and the reconstruction constitution makes them law and shows our commitment to those values. so story is better because more true. but it's also inspiring. the gettysburg address is better than the declaration of independence. it's pro-democracy government by the people. lincoln is better than jefferson. he didn't, for instance, enslave his children. the civil war is better than the revolution. it's really war for liberty. the reconstruction constitution is better.
the 1787 constitution. it pays attention to individual rights. and we as a people don't have to say that our ideals came enslavers and coexisted with slavery. we say they came from abolitionists and they were born in the struggle against slavery. this story is also, i think, more productive. so the heroes of the standard story, the patriots of 1776 who focused rather obsessively on supposed injustices inflicted against them and ignored the injustices they inflicted on others. the heroes of my better story are people who saw injustice in the world injustice they didn't create and worked to end it even at great cost to themselves. and that's a better lesson in terms of what we should do to be good americans. right. don't obsess about your own grievances. try to help other people make for the common good. the better, i think, includes and excludes the right people.
so some people have difficulty with it because they have a hard time seeing themselves in reconstruction. well, no story is perfectly. there are people who have a hard time seeing themselves in the found it, too. now, the who have a hard time seeing themselves in the founding are people who think that writing all men are created equal doesn't make up for enslaving your children. the people who have a hard time themselves in reconstruction are the people who identify with the confederate who fought a war to preserve a society built on slavery. and if the question is which of those groups, should we marginalize which we make uncomfortable? which group should doubt whether america really shares their values? i think the answer to that is pretty clear clear. and to finish, let me try to connect this story a little more explicitly to the present day. so one thing i'm trying to do is to give you a better story. a story that shows you in america you can believe. but another thing i'm trying to
do is to promote inclusive in the struggle against, exclusive individualism, because that struggle is still going on. the better story i gave you sounded happy. maybe but it doesn't end. in 1868, reconstruction. it's overthrown by white supremacists during the period that historians call redemption. it's overthrown by violence because the federal government stops the integrated governments in the south. white americans choose unity. unity among whites over justice, which is actually the common theme for most of american. it's unity, but it's built on oppression and exclusion. and for almost 100 years, the promise of the reconstruction and amendments is denied until the civil rights movement in the second half of the 20th century and the warren and congress's civil rights act, and maybe most important the voting rights act
of 1965. this what historians call the second reconstruction. but just the first reconstruction. there's a backlash. there's what i the second redemption. now that term is less common among historians, but i think it's catching on. and i date it basically to 1980 when reagan wins 44 states. but only 14% of the black vote and 49 states and 9% of the black vote in 84. it's white unity at the expense of racial equality. reagan promises return to the values of the founding. that's originalism, which what reagan's justice department makes prominent. that's really where it comes from in our modern history. but what he's offering is exclusive individualism. and that's not just ideology of the founding. it's the ideology of the confederacy. two outsiders are dangerous. they're taking what belongs to the real americans.
they're a threat to your safety. and there's a strong racial element to this. the subtext is we don't accept that all citizens are equal. we don't accept that. just being born here makes you a fallen equal member of our political community. we don't accept the 14th amendment. we don't accept reconstruction. so take away reconstruction. and you have founding. and reagan says fighting for the values of the founding in a nation that has turned from them. and that's true. but we've seen that fight before. and it's redemption. take away reconstruction. and you have the confederacy confederacy. this second, redemption doesn't immediately. we go back and forth. inclusive equality is fighting against exclusive. and we're still fighting and
there are lots of different battles to look at. and the supreme court dismantling, the voting rights act is a very important thread. but i want to focus on one which is january 6th. what was that? well it's white paramilitaries. the boys, the oath keepers, the three percenters attacking federal government. so moment in our history does that echo. what do we call it when white paramilitaries fight the government? well, call it 1776. maybe if they're trying to separate. and of course, the january 6th insurrectionists talked a lot about 1776, the sons of liberty, the minutemen. it's the revolution. but if they're not trying to separate, if they're trying to take over, that's more like 1876. that's the red shirts, the white league, the klan. that's. and what we're seeing now is redemption on a national scale. it's an attempt by a minority to
reject the results of democracy and capture the federal government, taking advantage of some of the features of the constitution that make it possible to do that within the law and twisting the political process in other ways that might not be legal. and using to. so that struggle is not over. and we are helping the enemies of democracy. if we tell ourselves a story where white paramilitaries fighting national government are the heroes, where patriotic americans decide, the government is infringing on their rights and so they can rebel. what matters is not democracy, but protecting the rights of insiders. joe biden gave a speech in philadelphia recently which. i liked a lot because he said there's a real threat to our democracy. and he called on people to oppose in the name of our national values. he said, you can't be pro-america and pro insurrection. but of course you can if america is the america of 1776.
that's what 1776 is all about. or if you're america is revolutionary, america or redemption america. the america of 1876. that's what it's all about. if you the election take power anyway. make sure the government protects the people it's supposed to. the real americans. not outsiders forced on you by someone else's of equality. so for a lot of reasons, on just about every dimension that you can think of, i. i have a better story. it's more accurate. it does a better job of explaining the historical facts. it's more inspiring. it shows a better america, a nation worthy of our faith. it's more inclusive. it has room for everyone who really believes in equality. it teaches us better lessons not to obsess about our own grievances, but to see the injustice in a world we didn't make injustice. that's not our fault.
and try to do something about. it calls on us to live up to some founding myth, but to make a future that's better than the past. it gives us the tools to defend the democracy that so many americans died for. and i believe the fight not lost. i believe the best lies ahead and not behind us. and nation that never was. still may be. but ultimately, that's going to be up to you. thank you. all. right. so we're going for an hour. we've got a little bit of time for questions. i guess i'll just call on people should you come to the mike to come to mike?
i guess that's what the mike's for. hi. my name is alexander. i'm a wow. so when you say that the reconstruction of america really is in the ears to the founders couldn't say that perhaps you're being a little bit too you're homogenize the founders a bit too much perhaps there was different strands of thought the founders there was even within individuals, they didn't have a very clear like they believed in equality. but at the same time they had these horrendous ideas. you could say that the america reconstruction and the rebels of the civil war, they were inheriting two different strands of the founders thoughts, would you say? that's correct. or i would say that's partially correct. so there's definitely diversity of opinion among the founders. so you can look at the signers of the declaration, independence, three quarters of them owned slaves. some of them were opposed to slavery. you can look at the drafters of
the 1787 constitution. you've free states and slave states represented. so, yes, people have different views. and of course. right. where does the ideology of equality come from? it comes from people who were there founding america. it's an alien ideology that in from nowhere. so, yes, it's there and maybe could say that i'm homogenizing founders a bit. i think that i'm correctly identifying dominant political philosophy. right. that's what i would say i'm doing and i think that standard story homogenize the founders massively in wrong direction and takes what at best a minority view and elevates it because that's what we want to believe, that we're committed and now we want to believe that we're connected to the founders. so we have say that was their ideology. and i think that this really prevents us from seeing the past accurately, it prevents us from understanding the declaration of
independence the way it was understood and the 1787 constitution, the way it was understood. and it makes us say things like. dred scott has to be wrong because we feel a connection to the 1787 constitution. we can't admit that it might just have produced that monstrous decision. thank you. yeah, but there were those. thank you for speaking with those. really great. you swung me. he's always been to me that self-determination and freedom was an essential tenet. the founders and the confederacy. it seems too hard on that. i think it makes a lot of sense. i don't know that. i'm fully convinced yet that freedom and equality was not one of their central values, she said, you know, founding declaration, all men are created equal. then the next line is that they are endowed by their creator with certain unalienable rights. and you said that they're
referring political philosophy there, but that seems to be a religious a a religious idea. there that they're endowed by their creator, capital c, by a christian god who had a lot of equality ideas. how are you going the conclusion that that idea is just not in there? it seems to me that there's a struggle between freedom and equality. not good equality just didn't exist. well, so, i mean, one thing you can do is you can look at the practice which is not very égalité. so there's massive discrimination against outsiders. of course, there's slavery. there is pretty massive discriminate. against insiders, too. if you look at the treatment women, if you look at the treatment of non property holding men. so there is a lot of inequality now compared to some of the feudal that existed before. maybe they're not so bad. i'm not saying american revolution is not a step in the right direction, but on the
precise question of inalienable rights. i think it again is important to understand the argument of the declaration works and why jefferson said that. because when he's talking about inalienable, he's not saying these are very important rights that no one should interfere with. right. that doesn't really matter to the declaration at the point of saying that liberty is in evil means right. inalienable, very precise legal concept. jefferson's a lawyer. he's using it, understanding what it means. it means you cannot give it away, cannot divest yourself of it. why does that matter? because so far, the declaration is tracking consensus, enlightenment, social theory. but when you get to the question of natural rights, people diverge, locke has a different view from hobbs, right? hobbs says people out endowed with natural liberty and then they surrender that liberty to the sovereign irrevocably and the sovereign has authority over them and they can't complain about what the sovereign is
doing. and if you go that way, then you have no right to rebel. so here, jefferson, to pick between locke and hobbs, and he picks locke by saying liberty is inalienable meaning cannot surrender your right to liberty. you always have the right to complain. if the government violates your liberty. and that's what that's there. are courts look to the documents of the founding america when deciding what's constitutional are walking you to what comports with our legal system today. if the america that we inhabit or the one that represents our values is that america, should our courts take a different approach? how do you operationalize the vision of a second america? do you stipulate? yeah. so the main thing that you do is originalism looks at 1868, which isn't necessarily going to give you great outcomes depending on what you're doing, like dobbs
kind of an 1868 original ssm decision looking at the rights of women. but it makes you understand that the balance between the states and the federal government in particular, is not the one that was struck in 1787. so if you're trying to decide whether the affordable care act is a massive, unprecedented of federal authority, you don't read the federalist papers and at what james madison said about, the balance between the states and the federal government. you understand, you know, what the federal government wiped out the states and made new ones. and when compare the affordable care act to that, it actually doesn't so extreme and unprecedented. so you've got an 1868 baseline for some of the foundational rather than a 1787. one thing here you talk today, my name is dylan. the three material i just had a about if we switch paradigm from
the concept individuals having the to challenge that the government to something that's more in line with the reconstruction and inequality. how does that shift concept of where the or the kind of flows from the people flows from the just the authority to govern kind of how does that shift. well so not sure that it changed is our understanding of where authority comes because the theory the declaration absolutely is authority comes from the people and governments derive their authority from the consent of the governed. what it does do maybe is make us think about democracy. so i said the declaration of independence is not a pro-democracy document and it's astound ing to me that people think this because unlike equality, there is not even a suggestive phrase in declaration that points to democracy. so what that suggests is when
you're thinking about how power is exercised, if you're adopting the perspective of 1776, it doesn't really if it's a democracy or not, all you need is consent and protection of the rights of insiders. and if you look the 1787 constitution, it's not that democratic. i mean, it is a step again, like it's not a monarchy that's a good thing, but it really not meet our modern standards of popular accountable body and the independent state theory that we're seeing floated now is actually a manifestation that right because the 1787 constitution gives over the appointment of electors to the state legislature. they don't have have a popular election you have no right to vote for president unless state allows you so we do see something different there right. because with the gettysburg we're talking about government by the people and that the legitimating principle for
government going forward i so now we can ask is this government fairly representing the interests of everyone? does everyone have an equal in the political process, which is a i think you can't ask if you're guided by the declaration of independence. so in 1868, obviously half, of the american population still had no legal rights. talking about women. so if we're basing our conception of equality on 1868, how do you square that with the clearly like subjugated of women. yeah. so that's a very good question. i think if you look at the practices and attitudes of 1868, it's not pretty picture, right? and this is what did dobbs said you know hey, what kind of rights did women have in 1868? and the answer is they were a lot of rights because they were not as equals.
and maybe the best expression of this is a kind of infamous concurring opinion by justice bradley in 72 in the case bradwell against illinois, where woman wants to challenge a state law that prohibits her from becoming a lawyer. and the supreme court sort laughs her out of court and. justice bradley concurring says the natural and proper timidity and delicacy that belong to the female sex evidently unfitting her for many of the occupations civil life. so that's the attitude in 1868. and if you say we're basing our standards on those attitudes, then you get decisions like dobbs but i think it's important to understand. dobbs is not originalist. dobbs is doing weird historical analysis that is not unless you think that's what the due clause tells you to do. use the attitudes of 1868. i don't think does, and i don't think the equal protection does that either. sort of more. i think the equal protection
tells you that governments cannot in a way that is arbitrary, oppressive or unjustified. and if you're trying to figure out whether something arbitrary, oppressive or unjustified, look at contemporary attitudes, look at what we know to be true now and what we believe to be morally correct. and that actually gives you the kind of expansive of propulsive doctrine that historically had with equal protection, where social movements, people's minds, and then their victories are sort of ratified by supreme court decisions, recognizing equal status. and i think you do have that with respect to, say, women's political rights through the idea of democracy with the gettysburg address, according the declaration of independence, there nothing wrong with denying women the right to participate in the political process, even though they're insiders, as long as their natural rights are being protected, they're not. because if you deny people a voice in the political process, you tend not protect their
rights. but they could say, you know, founding could say they were doing that, whereas if have a principle of democracy, the idea you know, the way to make sure you are protecting people's rights and treating them fairly is to give them a voice in the political process. and that's idea that also has this propulsive expansive force that can lead to broaden political participation over time. yeah yeah. do we do have to stop him or we like i can i can hold it or maybe do one more i think we do one more. i guess i feel like that's kind of like, okay so you're talking about like narrative of the founding or like where it is that our rights come from as a means of, i presume, justifying the political actions that kind and you bring up reagan. and so the contrast between specifically reagan and your vision seems to be that reagan's vision and offer to america in 80 election is an opportunity
for specifically white america to to look away and forget the difficulties of the last 20 years to absolve themselves of some kind of obligation to actively seek out, you know, a redress of harms, whereas your vision creates and in an obligation and makes it incumbent upon us to not only bear witness injustices, but you actively seek redress for those injustices. and so, like the political tension seems to be that like there is opportunity cost for people who would benefit from an inherently unjust system. do you always like take the path least resistance towards the vision, the narrative that justifies. you know, i'll call it lazy, must be a little so like what is like what do you see as like the applicability of vision to, you know, the electoral political context? like how do we build this as a vision not only of how to hew the country's founding ideals of how to approach the law, but to do democracy. well, i mean, i think the answer
to is sort of straightforward, although it might not be satisfying to you, which is if people think about this as the american story and if they think about the american heroes as the people who see injustice in the world and work to change it, even if it benefits them, then you get a different attitude because the standard story tells people, america always fundamentally been devoted to equality and we are progressing towards that over time. and basically, like you don't have do that much, right? you can be a sort of comfortable person who doesn't like injustice but doesn't like conflict either. and you say, you know what, let's just wait. things work out. this is basically martin luther king complains about with the white so letter from the birmingham jail he's saying i have almost come to believe that the greater barrier to advancement towards equality is not the klan and explicitly racist people, but the white moderates who are like, yes, of course, agree with your goals,
but know, be calm, be patient. everything is going to get better because it inevitable gets better because this is america and equality is in our soul. and if you're like, no, equality is an idea that comes in and fights and. you only achieve equality through struggle. and what is best about comes from actually those intense moments of struggle. right? without slavery, you don't abolition. without the civil war, you don't get the 14th amendment without the injustice people fought against, we would not be the nation we are. so if you take that view then? i think much more like a call to action. how do you get people to see that? well, i think we have to like change the way we teach american history. so starting at like the high level, i would like an understanding of american history that centers reconstruct. all right. thanks so much much.