This course offers an introduction to the U.S. Constitution and landmark Supreme Court cases interpreting it. It explores the Constitution’s origins, its amendment over the years, and methods of constitutional interpretation. Topics include the nature and structure of the federal government, the powers of the federal government, and individual rights.
Class 8: The Reconstruction Amendments
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From the course by University of Pennsylvania
Introduction to Key Constitutional Concepts and Supreme Court Cases
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University of Pennsylvania
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From the lesson
Amendments and the First Amendment
This segment first explores constitutional amendments, including the Bill of Rights, and the Reconstruction and Progressive-era Amendments. Then, we will take a detailed look at one of the most important amendments: the First. We will learn about the constitutional protections for speech and religion, how they have changed over time, and how they apply to various circumstances. Finally, we will learn about the Establishment Clause and what it means in today's society.
Meet the Instructors
Professor Kermit Roosevelt, IIIProfessor
Law
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The first ten amendments, the Bill of Rights,
get ratified immediately after the Constitution itself.
Then there's a pause in our constitutional development.
We get the 11th and 12th amendments, which deal with kind of technical talk.
The 11th amendment is about when and where states can be sued.
And the 12th amendment tries to fix the system for electing the president.
The fact that the framers didn't anticipate the party system meant that
their original design didn't work very well.
But nothing very major happens between 1791 and 1865.
Oh wait, something does happen, the Civil War.
Why did we have the Civil War?
Well that's a very complicated question, but
what I want to suggest to you now is that in some ways the Civil War is
built into the founder's Constitution, in two ways basically.
First, the founder's constitution did not resolve the issue of slavery.
It didn't say slavery will eventually be abolished and
it didn't say slavery can never be abolished.
So that issue was bound to come up again.
There were different ways it could have come up,
but a reasonably foreseeable way was what actually happened.
The North grew in population.
Even with the Three Fifths Compromise, which, remember,
increases the federal representation of the slave states.
The free states started exceeding the slave states in the House of
Representatives and in the Electoral College.
So the North is increasingly controlling the federal government and the presidency.
In 1856, the South votes for
James Buchanan and he becomes president, defeating the antislavery John Fremont.
In 1860, the South votes for John Breckinridge, but he doesn't win.
Abraham Lincoln wins, and he is not the southern choice.
In 10 of the 11 states that are going to succeed Lincoln gets zero votes,
he's not even on the ballot.
In the eleventh Virginia he gets 1.1% of the popular vote.
So the south sees the national government falling into the hands of
anti-slavery forces.
The national government is starting to
look like a threat to the rights of the south.
The right to own slaves,
which is something the founders constitution protects.
What is supposed to
happen when the national government threatens the rights of citizens?
Remember the first lesson of American history.
Remember the second amendment.
The states are supposed to stand up and defend their citizens.
The Civil War is what's supposed to happen.
That's the second way the Civil War is built into the founder's constitution and
the war does happen but the states lose.
Now what?
Well this is a moment just as dramatic as the founding, more so maybe.
Now we get to the third great lesson of American history.
The first one, the lesson of the revolution, is that a national government
can threaten liberty, and the states can stand up to protect their citizens.
That's the vision that gives us the Articles of Confederation, but they fail,
which gives us a second lesson.
The states can't cooperate.
That gives us the Founder's Constitution.
And now the third.
The lesson of the Civil War and it's aftermath.
Do states really look after it's citizens?
No.
Not if you count the freed slaves.
If you think about the freed slaves,
you don't see states protecting their citizens.
You see states oppressing them.
The third lesson of American history is basically the opposite of the first one.
You don't need states to protect their citizens from the federal government.
You need the federal government to come in and protect citizens from their states.
This is a complete reversal of the founding vision.
The states aren't good anymore.
The states are bad.
And the federal government isn't a threat to liberty anymore.
It's the protector of liberty.
And of equality.
This new vision is what we call the Reconstruction Vision, and
it's embodied in the the three Reconstruction Amendments.
The 13th, 14th, and 15th.
What are these amendments?
What do they do?
In general terms they're what Lincoln promised in the Gettysburg Address,
they are a new birth of freedom.
Rights for individuals against states.
It's worth repeating we didn't have those in the founder's constitution.
Look at the Bill of Rights, how does it start?
Congress shall make no law.
So it restricts Congress and in some ways it empowers the states,
it protects state religions in the first amendment.
It protects state militias in the Second Amendment.
And, now look at the Fourteenth Amendment.
How does it start?
It starts by confirming the citizenship of all people born in America.
That is, notably, the freed slaves.
And, then it goes on, no state shall.
So, now we're restricting the states.
What about Congress?
At the end of the 14th amendment we get another Congress shall,
but it's not Congress shall make no law,
it's Congress shall have the power to enforce this amendment.
The reconstruction amendments limit the states and
they give more power to Congress.
What are the limits?
The 13th Amendment is pretty straight forward, it bans slavery.
This is one of the very few constitutional provisions that applies to
individuals as well as the government.
Usually the constitution restricts only the government, either the states, or
the federal government.
So usually an individual can't violate the constitution.
But owning a slave does violate the Constitution,
even if it's just an individual doing it.
The 14th Amendment is more complicated.
Its first sentences reverses an infamous Supreme Court decision,
the Dred Scott decision.
In that case, the Supreme Court said that slaves and
their descendents were not United States citizens.
And could never be citizens, even if states wanted to grant them citizenship,
which some states did for freed blacks.
The 14th Amendment says no.
Anyone born here is a citizen of the United States, and
also a citizen of whatever state they live in,
even if the states don't want to grant them citizenship.
It goes on to grant three different kinds of rights,
which we'll talk about more later.
It protects the privileges and immunities of citizens, and
it guarantees all persons equal protection and due process.
Privileges and
immunities has turned out, thanks to the Supreme Court, not to mean very much.
But equal protection and
due process are very important, and we'll talk about them more later.
Roughly, equal protection is a right not to be treated differently
without a good reason.
And due process protects various fundamental rights, including but
not limited to most of the Bill of Rights.
So, here is the reason that you have free speech rights against the states or
a right against unreasonable searches.
Those rights are in the Bill of Rights but the reason you
can raise them against the states is the due process clause of the 14th amendment.
The 14th Amendment then goes on to do something else.
Remember the Three Fifths Compromise, which said that slave states would get
extra representatives based on on three fifths of the number of slaves they held.
Well, slavery's gone, so now the slave states will get representatives based on
the whole number of freed slaves.
More representatives than they had before the Civil War.
The South is rising again.
The South may take control of the House of Representatives.
Congress didn't want that, so the Fourteenth Amendment says, hold on,
if you don't let these people,
the freed slaves vote, then you don't get representatives for them.
They'll count as zero in terms of determining your number
of representatives.
Except, not all the freed slaves only the men.
So here in the birth of equality,
we actually get sex discrimination written into the Constitution.
You pay a penalty for denying the vote to freed men, but not to freed women.
People might have hoped that this would be a sufficient incentive for
the former slave states to allow the freed slaves to vote.
But it wasn't.
So the 15th amendment was necessary,
which says that the right to vote may not be denied on the basis of race.
Taken together, as I said, these amendments are a new birth of freedom.
They are a new constitutional order.
They are basically our third try.
First, the Articles of Confederation, which failed.
Then the Founders' Constitution, which came apart in the Civil War.
And now, the Reconstruction Constitution.
How has it worked out?
Well, that's what will see in the classes that follow.
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