since early march. the war had ended, we were told, and slavery was over too, we were told, but that made for big questions left unanswered. and if we assume, as it is so easy to do, that former slaves must clearly not the citizens, we somehow conflate the turbulent events over the next year or two, or three. and i want to catch the wave early on in that unfolding history. the 15th amendment had been shepherded through congress the previous january, thanks to congressman spielberg. congress had to face its implications. when they met that first week of december, they had reason to think, and rightly so, that word would come real soon than the amendment had actually been ratified. what next?

it had become increasingly clear across the war that the abolition of slavery was a likely outcome. and of course, the objective of winning that war had always been a primary pursuit. suddenly, you get the two in combination, and each left a huge combination to be addressed. what would the now suddenly former confederate states be? and how to treat them. and who would the now-former slaves be? what should be their status. lawmakers, federal or state, had multiple models to work from as they tried to address the question of former slaves. one was white freedom. the same rights, responsibilities, and resources that occurred to anybody, regardless of race. not regardless of race. regardless of gender. of class, of locale, of all the kinds of things.

but it requires the antecedent adjective. there was black slavery to be moved away from to some degree. at least two models between countries the former slaves could populate. one would be, pick a random state from the non-south as to what the prewar status of people of color would be. always restricted in various ways, sometimes far more in some places than others, but never in equation with white freedom. and there was the status of people of color who, not slaves, had recently had freedom in former slave states. mississippi supplied one model. there were less than 18,000 people captured in the census of both free and black in mississippi.

other states, virginia among them, had far greater numbers. in every case, black freedom lay somewhere between black slavery and white freedom. each model should be followed? this was a big question. and we could say that the struggle of reconstruction was over which of these multiple models should be adopted. who gets to say? how would it play out? and that is the question that dominates the literature, popular understanding of reconstruction. historians understanding as well. we look to that as the central question, but it may not be the only question. it may not even be, for understanding politics of reconstruction, the best place to look. what if. historians of the civil war often ask about abraham lincoln. what would he have done, had he lived the entire length of his second term as president? had he lived even through the first several months of what might have been?

less often asked is the question, what if congress had been in session during that time, and not had to wait to december to ask these questions. you catch them in december at the end of that year. that he is stevens and his colleagues in the house of representatives closed shop the first week of march, the first day of lincoln's second administration. lincoln undressed the second inaugural. we can refer to things he said. we would have seen what reconstruction policy he would have pursued. maybe and maybe not. think about it. nine months had passed. 1888, the first time voters in presidential elections, how many were conceived and born during that interlude? that is a long period of time.

johnson, the new president, new the inaugurated vice president and now suddenly president was in charge. he meant to take charge, and he did. what did congress members now in december that they could not have known back in march? and what might they have known in december that was at least foreseeable back in march? these kinds of materials, they had to work with when they came into session. there are two places i want to take you, to give a sense of what it is they thought was imperative to act upon. one, we will take you to mississippi. if it is ok by you, off to mississippi. they would have known, that december, about a new civil rights act passed just days before. became law in mississippi in late november.

there were two schools of thought among the only mississippians making policy. one had to do with tailoring black freedom to the narrowest possible -- calibrated to the smallest margin of difference between slavery and whatever would follow it. then, there were the moderates, with a more generous, expansive idea of what black freedom might entail. they were committed to a proposition that former slaves should have some rights of property and mobility that went beyond a more restrictive alternative. that both were in full agreement, as the leader of the more moderate action said, black mississippians will never be citizens, and absolutely never be voting citizens. this was the expansive version of black freedom in early postwar in mississippi. andrew johnson, for his part, sent a message to the government, saying, you know, if you cannot guarantee former slaves more freedom than it looks like you are prepared to, when it comes to protecting

themselves and their property, i troops are going to have to stay there until you do. this is andy johnson. what will we make of a more expansive model of black freedom, if that had become the norm, if that had been accepted, if that had become the basis for postwar settlement? you have democrats, but especially republicans, representing constituencies across the non-south, committed to some kind of free labor ideology, a notion of how society should function and what former slaves ought to experience, no longer slaves. standing out as the centerpiece of the new civil rights act of mississippi was a provision widely understood to deny that black mississippians could ever own land in rural areas. this is central.

if you are bound to continue to work on someone else's land, how free are you? how can we tell you are not a slave? how can we tell that slavery is actually over? how can we assume that that kind of issue won't arise again? that is threatening to the republic, as it has so recently proven. black southerners had their own version of the future, and it looked rather different. and i will take here as one example a convention meeting in early june in norfolk, virginia. i had to learn how to say that, norfolk. and they meet and they put together an extraordinary set of -- we could call them demands. this is their manifesto. it is the world they envision. they argue for its rightness and its necessity. it includes such observations to the opposition that, you claim a lot of our people are seeking alms, getting rations.

but don't you think there are a lot of former wives and children of soldiers who went off and fought for the union and for their community's freedom? and wouldn't it be right? and certainly, they need, as far as possible, the distinction between black freedom and white freedom. but having gone through a series of scenarios, one of which rarely comes into view, they point out there are many challenges of recent black soldiers trained for war, who just might be prepared to put up resistance, should they see their family members and communities being pressed back toward slavery. but moving away from that to another main category of consideration, this manifesto

points out that in your own interest, directed not to an audience of policymakers in the nation's capital -- the nation we are talking about is washington, d.c., not the one in richmond. you have an interest, and this is what it is. i brought a script along because i need to read this to you. what they said warrants reading verbatim. you have not unreasonably complained of the operation of that clause of the constitution which has not permitted the south to wield the little influence which would be represented by a white population equal to 3/5 of the whole negro population. you complained about that a long time. you knew it was important. maybe it still is. that slavery is now abolished, and henceforth the representation will be proportioned to the enumeration of the whole population of the

south, including the people of color, which is to say 3/5 will suddenly convert to 5/5. so again i digress from the verbatim, right? but think about what people in congress are thinking about when, as republicans, they look upon a landscape where the consequence of winning that horrifically expensive war, they dragged back kicking and screaming states that tried to get away, could not. and as the penalty for having tried and lost, their representatives in congress will be far more numerous. their ability to cause mischief ever so much greater than it was before. back to the verbatim. it is worth your consideration, if it is desirable, that the commenters of this rebellion against the union, which has been crushed at the expense of so much blood and treasure, should find themselves after

defeat more powerful than ever. the political influence enhanced by the additional voting power of the other 2/5 of the colored population, which means four southern votes will balance at least 7 northern votes. that converts directly to the electoral college, to this election of the president, which translates pretty directly into the selection of the federal judiciary. 3/5 is implicated in the operations of american governance, and suddenly the rules have changed, because slavery was gone. and so the group from which you would measure 3/5 of a number in this fictitious formula, 5/5, not 3. in the 1860's and 1960's, it can be very different. and that is one major burden of what i wished to say today. my major point is this.

historians commonly misperceive what was at issue in 1865 and 1866, by taking for granted the issues must be those more recent, where the 3/5 compromise was not part of the discourse. you probably don't hear that much. but they continue the question of the equation between black freedom and white freedom. that is out there every day and will be for some considerable time. perhaps, just maybe, we are confusing, when we look act in this way, what was important than with what has been important since. the long history, the prewar history of the 3/5 -- this is what the framers of the manifesto in norfolk had in mind. calling attention to things people already knew but might

let it escape him the focus of their attention. the hartford convention -- anyone here from hartford? it is a deep south state. i am sure you have heard of connecticut. during the war of 1812, times were tough. it is an unpopular war. it is devastating to the economy. other people are running the government and doing destructive things. you have this meeting, the conference. we could call the mississippi state legislature or the california secession convention, or the convention of black members of the norfolk community. but here in hartford, representatives of several northern new england states -- hartford is a northern england state, right? i mean the whole of new england is represented in this convention. its demands are quite simple. we need to have more power in running the government.

the core of our problem is this. the 3/5 clause inflates the power of guys who happen to be running it, but not righteously. it would be in far better hands in hours, and more likely if we had 0/5, so that is what they proposed. they made other demands designed to neutralize the overwhelming power of virginians to find another president, who would serve not just one term like john adams, but two. they make quite clear what they demand. they make it clear they do demand it, because they say that if in the months ahead the war has not gone away, the damage does not diminish, that we will meet in a specified time and decide what to do. i have never seen anybody do this, but think about the model, the first continental congress. we do not like the way the government is operating. we have demands we wish to bring to your attention.

we hope they will be addressed. if they are not, we will meet again. what do they do when they meet again? that is called the declaration of independence. this is new england in the winter of 1815, 50 years before we pick up the scene in 1865. now, we moved to congress. i will take as my representative hero william [indiscernible]. here is someone who had been in the cabinet of president lincoln in the closing months of the war, closing months of his first term, as secretary of the treasury. and now as senator elect from the sovereign state of maine is making his way south to washington, d.c., that where he spent so much time. his view of the world was one in which clearly black freedom was going to have to take a more expansive turn than it was beginning to seem president johnson was willing to permit.

nevertheless, confident they can work this out. he says this for public consumption and in private letters. here is one quote, on christmas eve, 1865, several weeks after congress was convened. he writes, matters can be satisfactorily arranged to the great bulk of union man throughout the states. we still can make this work. on another occasion, and he continued to hold to this for another couple of months, into february, when johnson vetoes the freedom act and it is clear there is no possible reconciliation. congress is on a hook and will have to make wallace the best they can, and to do that will require what kind of margin? if you are going to override a president's veto or propose an

amendment? 2/3, right? i mean, you have got to have 2/3 no matter what. and in the meantime, you cannot permit the other team to inflate its value. you cannot permit the restoration of those congressmen and senators from those 11 states, even if they have to be counted when it comes to legitimizing the ratification of a constitutional amendment. so, he says he is ready to support johnson "to the best of my ability, as every gentleman around me is, in good faith and with kind feeling in all that he may desire that is consistent with my views of duty to the country." there is the rub, people. kind feeling. good faith. up to this limit. it is not quite clear, when he

writes that, that johnson will go beyond that limit. republicans in congress could differ over all kinds of things about land distribution and political enfranchisement. at some point, they had to give up their differences on that last one. congressman thaddeus stevens, and he came back to congress with a proposal in the front of his mind, the first day, he and a number of colleagues proposed the representation be based on voters. not saying who those voters will be, but if they are not voting, you are not counting them. right? so here is the resolution. that in the opinion of this committee, the insurgent committees, be allowed to participate in the government until the basis of representation shall have been modified, and the rights of all persons amply secured. the rights of all persons amply secured -- we could see that as the first section of the 14th amendment. the basis of representation -- that is clearly the second

section. these are not standalone things. they are mediated by the right to vote. but even in the absence of that, the first item there -- the second item in the amendment, that is nonnegotiable. among the republicans to voice the need for revisiting the basis of representation, along the lines of the statement at norfolk last june, here is a member of congress from new york and a member of the joint committee on reconstruction. he said, shall the death of slavery add 2/5 to the entire power slavery had when slavery was living? shall one white man have as much share in the government as three other white man merely because he lives where blacks outnumber whites two-to-one? shall this inequality exists only in favor of those who without cause drenched the land with loud and covered it with mourning?

shall such be the reward of those which did the foulest act in the annals of recorded time? no sir, not if i can help it. they mainstream public opinion is being offered up as a possible basis for considering what the postwar world should look like. senator john sherman wrote his brother, general william tecumseh sherman, a private letter. who shall exercise this additional political power? shall the rebels do so? on another occasion, senator sherman thundered -- this is one of my favorite statements ever. the one thing i know -- that never by my consent shall these rebels gained by this war increased political power, and come back to wield that in some other form against the safety and integrity of the country. you see where i am going with this. it seems to me this is the absolute centerpiece of post where politics. without this, we cannot come to grips with what the politics of reconstruction were all about.

but we need to head back south to get white southerners on this. here is my take on this. it is not only the framers of the 14th amendment. it is the ratifiers. what do they see as important? how do they understand the first, let alone the second, of the two sections i have highlighted in the 14th amendment? way back in the 1930's, the best book, still arguably out there, about the framing of the 14th amendment -- how you come to use the formula that was adopted. but less well known and more recent is another book by james bond. james e. bond, actually. he talks about the process of ratification and goes to each of the 11 seceded states. he talks through what the understanding of the ratifiers was and what the framers were demanding of them. the short version is this. bond is mostly interested in

section one, in what people understood at the time. he has understood how it became interpreted over time as a restriction on state power as well as federal. all kinds of things he wanted to know about. along the way he offers this. the debates did not focus primarily on section one, which today is the 14th amendment. instead, the debates focused on sections two and three, which dealt respectively with negro suffrage and apportionment, and the exclusion of rebel leaders from political office. while those preoccupied white southerners then, today they are dead letters, so we pay no mind to them. the centerpiece then, irrelevant now. in short, the one section which was to become the foundation of so much modern constitutional law was considered far less important than the others. that tells you about the original understanding of its limited scope. if i had more time, i would do

everything else i wrote here, but i am sure i am going to run out of time, so i will skip over some stuff. now that we have various voices in play and a clear sense of the issues, what else might i decide to fit in? congressional republicans might have distinguished between federal elections and state elections. he could have said, we have got some say over federal, but not overstate. what they knew that. they knew they could not make such a distinction. start with the fact that it is seven state legislatures that appoint u.s. senators. you cannot make that distinction. moreover, they were committed. this is the mainstream position taken by congressional republicans. like southern men have got to have the right to vote to have a say in the policy that would govern everyone. running for their political lives in the aftermath of the death of slavery, and in the context of the transformed

meaning of the 3/5 clause, republican members of congress fashioned a collection of demands into what they propose as the 14th amendment. this was not negotiable. it had to become part of the u.s. constitution before the states of the recent confederacy could be safely readmitted. and the key component, by all odds, appears to have been section two. this is not the important section to most black americans, but it was the most important section to white americans north and south, and it was they who were making the decisions. the leading historian of reconstruction arguably continues to be eric. his book, published a quarter century ago, is an extraordinary monument to historical scholarship. when i was in grad school in the late 1960's, there was a contract to write that book for the new american nation series, in the hands of another brilliant, accomplished historian, who failed utterly at pulling off this stupendous task. he managed to do that.

it continues to be incredible work. it fits so comfortably into what i described as reflecting on the past issues of the time he wrote, as if section one were the key, rather than section two. he acknowledges section two and then passes it by. rather than being the pivot on which everything turns, it is something along the way. more recently, he has a price-winning biography of abraham lincoln and his understanding of reconstruction largely lies where it laid been. the key question is the postwar status of african-americans. not by any stretch a minor question. an absolutely central question. but it was not at the heart of politics of reconstruction for white politicians, north or south. this was the central issue then. both he and william c. harris, in another really fine book on lincoln and restoration,

focusing on this question of what lincoln tried to do during the war, and trying to project what he would have done, had he lived. those very short statements focused on what in effect is section one, and bypass section two. i suspect that had abraham lincoln lived, two things. one, what they say, both he and harris, is probably true. it would never have come to such a sorry pass, had lincoln been at the home, which he was not. regardless of any of that, lincoln would have been a republican. he would have represented mainstream public opinion across the north. he would have voiced for it, push for it, seen as imperative -- you have got to fix the 3/5 clause, and you have two ways you can do that. let's review those before i run out of time.

what should we conclude from this review of where matters stood when congress reconvened in december 1865? i proposal is this. i love this line. i corrected it years ago. it is the fourth time i have used it. in death and in life, southern slavery royals national politics.national in death, as in life, southern slavery roiled national politics. in a matter too little recognized in the literature, the political implications in the immediate post-civil war era -- the death of slavery, the transformed meaning of the 3/5 clause, and what that might mean for power, policy, and politics in a post-slavery, post-secession, postwar world. the postwar position of african-americans had many

dimensions. you understand reconstruction unless we go back to these, and watch members of congress rise in a tortured congress where the impossible had to be obtained on multiple fronts. they would worry about justice, as we might. they would worry about power. they had to. the 14th amendment offered white southerners a choice between door a and door b. one, black men don't vote, but white men don't get to vote their representation. this is the 0/5 version. the alternative is, black men vote. you don't get to vote their representation under this scheme anymore than the other. but the representation remains 5/5. black men vote their share. 10 of the 11 confederate states rejected this proposal.

they refuse to concede they ought be put in a position where they had to choose between door one and/or two. they did not like either door, so they said no, go away. this is where march 1867 comes in. it is precisely to get the 14th amendment ratified. my students always want to know that black man got the right to vote with the 15th amendment. not so much in mississippi, louisiana, texas, or a host of other states. it came as a means to get the answer, as a way to ratify the 14th amendment, which proposed the choice between counting voting, and not voting not counting. it is really interesting how all that works. so, there will be new constitutional conventions for every one of the 10 resistance states. in those would-be delegates chosen by electorates made up of black men as well as white men,

and there would be seated black men as well as white men. and those conventions would produce documents, new state constitutions, that would include black political power, black voting would become part of the process, and the new legislatures chosen under the new constitutions would, as their first item of business, ratify the 14th amendment. after all of this, there is no 14th amendment. with all of this, last i checked, there is. we debate what it means, but we don't debate whether it is fair. so once you get all that in place, it is safe to restore to their seats in both chambers of the congress representatives and senators from those 10 resistant states. until then, no. not going to happen.

we move section two over to the center of our inquiry. to sum up, the framers of the 14th amendment new as their deliberations began they really wanted, if they could, to get something like section one. they knew they had to get section two. they did. and so we get to argue about which was more important to them. which is more important to us? but deliberations that led to section one and section two both had their origins in the immediate days after the convening of the congress in december 1865. they began immediately to address these twin problems that had to find solutions. thank you. [applause]

there is going to be a mic coming. >> this is a thank you and a question. in 1967, i was part of john franklin's seminar that went to north carolina to study reconstruction. my paper was on the reception of the 14th amendment, and you are absolutely right. all the discussion was on, when we discriminate, what will happen? second section -- i can understand that -- why did the northern states that did discriminate, that did not give equal protection to blacks, ratify the 14th amendment? >> i think i know the question. let me step back just a bit. what i did not try to fit into this short paper was the following. one of the great dilemmas of historical reconstruction is looking at the postwar decade or so, and taking as a premise that there was this magical moment during which white northerners were consistently agreed that

black freedom and white freedom should be identical. the great mystery of life is how that commitment receded, how you get to where you are prepared to give it up, to say, we cannot do this. it ought to be let go. if i started with section two is the key, that is the centerpiece. that problem goes away, to the degree that there never was this widespread commitment to black equality, you do not have to explain why it receded. but why did northerners except this combination? i think if we go back and section two, it is easiest to do. if this is where the commitment lay, this is where the problem was, and we can fix it through these means. the language itself leads states north and south to decide what they will do about black enfranchisement. there are fewer blacks in the north than this out, so there is much less at issue. you do not lose a congressman by

denying blacks the right to vote. but the congressional system has merit. the language in the debate on the floor of the house and senate makes it clear that you have got any number of people, whether it is john bingham, thaddeus stevens, charles sumner -- there is a commitment that whatever we do in our home states, even that is changing. the center of political gravity lurched toward progress in the immediate postwar front, but it only lurched so far, and it captured a time when it was possible to agree to both wings of this. >> first question, would you tell the audience about john bingham and this person trying to balance them? harold hyman told me the key chapter of equal justice under law was his chapter on the 14th amendment. he discussed what john bingham, who was from ohio, the second most famous man -- clark gable

was the first. john bingham. >> congressman gable? [laughter] >> they are both from the same town in ohio. second question, why don't you discuss how new jersey, delaware, and kentucky rejected the 14th amendment? >> there is a new biography of john bingham, touted as explaining the 14th amendment and its origins. the focus is on section one. bingham is a central figure. no question about it. there are any number of other people. what they see is, these twin problems that have got to be successfully addressed -- now is the only time we can do that. once those folks come back in on their terms, no possible way to make these kinds of policies. it is not just new jersey, not just delaware, not just missouri

and kentucky. there really is a opposition. it is very clear you are getting tremendous pushback from the senator from delaware, or congressman from kentucky. under what authority are you presuming to take these kinds of actions? the constitution nowhere permits you to do this thing. it is in that political and ideological context that the framers, the proponents who feel most urgently that change needs to be made -- they have to push ahead against a fairly strong head wind. what you say now is consistent, in a fashion, the answer to the first question. there is no broad-based commitment to any kind of equation between white freedom and black freedom across the north. it is clearly felt to some white

folks in congress, but it is by no means consensus. it leaves open the question about section one. what it leaves no problem at all with section two. we have to address this political imbalance and solve that problem. it's think about just a bit what is at issue with section two. it is not simply the politics of the immediate postwar world. there are people in the senate and house who wanted to be president. what were their chances going to be under the new regime, under 5/5 without black voting? what policies had they managed to get through congress during the civil war? what did they wish to get through in the postwar world that they would like to see rescinded? if not yet in place, impossible. the politics are all wrapped up here. it was essential that those who led the rebellion not come back with greater power. their capacity to do mischief would always be great, but could not be permitted to grow.

>> in the debates on the floors of congress, was there any discussion of intermarriage, in terms of increasing the quality of blacks and whites? and was the national failure to push for the lack of national support for civil equality a key factor in the ultimate reconciliation of white northerners and white southerners? >> short answer to the question is, we live in a world of rhetoric that comes out of the 1960's, where civil rights can reach out and embrace all things. in the 1860's world, the distinctions were pretty clear between civil rights -- the rights of citizens to own property, to go into court to testify, to protect your person or property.

political rights, which started with voting rights -- there was a question at the margins about officeholding. and then social rights, this question of integration outside the public realm. the narrowest -- the easiest to get the consensus on was the civil rights. the more difficult one was the political. the social was another problem of dispute entirely. interracial marriage did come up in those debates. no question about it. in effect, the proponents of the 14th amendment had to argue they did not need to reach such questions. those would be safely left in the hands of state legislatures. to the extent that that question was ever directly addressed, you distanced yourself from it, because that is really not what you want to be talking about. one of the great questions, from my perspective, the work i have done on interracial marriage -- the dispute has to do with,

equal protection, how does it work? the easiest answer is this. make of it what you will. when the u.s. supreme court ruled not on a marriage case, but a cohabitation case from alabama in 1983, the question of marriage is not directly addressed. the fact that these two people are both in prison -- not in prison, since it is alabama, but out on public leave. equal protection is perfectly well achieved. they were both indicted for the same charge, given the same penalty. what is your problem? that does not get undone until the 1960's. then, equal protection requires something else. that is the basis for your indictment. makes it illegitimate. >> what was the national

consensus on personal rights, a key factor in the reconciliation of northern and southern whites after the war? >> i think that is a promising direction to go. to use the marriage indicator, there is no conceivable way you could achieve any kind of consensus. far more states, north and south, had these laws against interracial marriage. it is clearly something we are fixing now. you asked a question that is interesting, but complicated by adding the other one. why is it the republicans ran on platforms through the end of the century and into the 20th -- the 3/5 is still there. these folks are not letting these folks vote. he have to do something about that. yet congress was never able to get that done. you had rotten boroughs with a lot of folks not voting and other folks voting their representation. it goes back to the notion that the narratives coming out of the

war -- we find a way. they are not that different. we are. time for me to go, i am told. [captioning performed by national captioning institute] >> you are watching american history tv. every weekend on c-span 3. to join the conversation, like us on facebook. week, american history tv's "reel america brings you archival films that help tell the story of the 20th century. your social security is in 1952 u.s. government film designed to explain how the social security system works. the social security act was signed into law by president franklin roosevelt in 1935