Transcripts For CSPAN2 Discussion 20131111

In that spirit i am so thrilled to day to introduce you to our author Gerard Magliocca. He has written definitive biography of the James Madison of the 14th amendment. You will come to appreciate how important john bingham who drafted that central amendment to protect Civil Liberties and the bill of rights, and this man had no definitive biography written before a and Gerard Magliocca does saving job. The e. U. Also will be riveted in this discussion will eliminate the issues that americans discuss today to understand the origins of our liberties survival briefly introduce our author then begin a conversation. Professor Gerard Magliocca at indiana university. No relation but if it is an honorable name. And from the school of law you ever written three books in over 20 articles and on concurring opinions and before a joining India University he spent two years as a lawyer and one year on the court of appeals and we share a teacher at Yale Law School that had something to do with your reasons to right this spoken tell me why you chose to write about john bingham. I encountered him in law school there is always a brief management offer of the equal protection clause that guarantees equality for all americans that i have professors most notably those who emphasized his role to right this language to change the constitutionally fundamentally from what it had been in 1787. Ive been looking for a biography and i did not find much and what i did find was disappointing. I thought isnt that a shame . Somebody should do it. About 10 years later i decided i should be the one and that is where this book comes from. Host you say lincoln was the greatest constitutional paul witt the bingham turns into prose. People our familiar with the gettysburg address shall with said changes in the constitution from one that was focused on more state centered view of National Life and one that was proslavery in some respects end that change occurred to a different constitution of the construction that stops with lincolns death lincoln is killed but then that is only just the beginning for the constitutional debates what civil war ii and was up to people like the number like bingham and others to take those words and translate them into law a and that is recut the 14th amendment you could say it is the work of lawyers but it is work that was necessary with tremendous impact ever since. Host we will talk about the 14th amendment that id like to take out my pocket constitution when you leave but its just read the 14th amendment then i will ask you what bingham was trying to achieve. Section one that i gather he contributed the most did he write to all of it . The second sentence that we use the most in the famous cases from the Supreme Court. Host pay close attention. The no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any state deprive any person of life, liberty, or property without due process nor deny any person within its jurisdiction the equal protection of the law. Welfare is a lot but what would it you tell our audience what made him the most important constitutional philosopher . What did he try to achieve . Several. The first was to guarantee fundamental rights to all americans black and white he like to say leading up to the civil war that the word white is not in the constitution. What were those fundamental rights he wanted to guarantee other than the abolition of slip slavery . His view was the entire bill of rights should apply to all americans against the actions of the federal government and State Government. At the time it did not apply to all americans and also to the action of State Government so the state of virginia could sense her speech and that was perfectly okay. So his position is one that took a long time to be adopted by the Supreme Court and we think it is obvious today that it should apply to states as well as the federal government but he contributed that idea in a significant way. Also to guarantee equal treatment under the law for all people. It is little less clear what he meant by that so of course, slavery and ending it was a big part of the story but he felt the government should take steps that there was equal enforcement especially in the south but elsewhere as well with respect to fundamental rights and Civil Liberties. Host beautifully said in many of the most important controversies today were litigated not under the original bill of rights but equal protection clause of the 14th amendments because of freespeech and the rest. Bingham believed states have no power to entrench basic human rights even before the 14th amendment was passed and he had a theory called the. Very the original constitution and tell us about that theory and why it was important to pass that amendment. They argue the original constitution protected the fundamental rights for all americans. In order to make that argument they basically had to reread a portion of the constitutional text the guaranteed immunities of citizens to say it included national privileges rather than the way most people understood it at the time one state could not discriminate against someone coming in from another state. To do this he said there are words that are supposed to be in their with their just not there but at 1. He said it is common sense to save a should reread into this provision and many people did not find that to be common sense at all but one reason was to rectify this by clearly stating there were national privileges and immunities and they recovered by the constitution in a broadway. That was one of the reasons he wrote it to the way he did. Host he claimed the phrase the bill of rights starting next year here at the National Constitution center will display one of the original copies and has been in new york for over 100 years at have agreed to share with us to display its but that phrase was not in current use until the 20th century but bingham used it in 1866 when he produced a pamphlet one country one constitution one people speech in support to enforce the bill of rights. He did not coin the phrase but it was not a common phrase the way we understand it. The Supreme Court never referred to the first set does the bill of rights until the 1890s. Sometimes if you are far ahead of your time and do things that are commonplace to think what was this contribution to this person was making . But these are saying this he contributed and persuaded everyone so thoroughly so now what have you done for us lately . So he was one of the few who emphasized that after the civil war ended that the bill of rights was the central part of the constitution it should apply to all americans now perhaps he was not as successful as might have been the case of this was true why it took a long time for the Supreme Court to except the position he was talking about but the most prominent person using that phrase a lot. Host but the original intentions that they should have to obeyed the bill of rights but it took almost 100 years for the Supreme Court to come around. How was it possible soon after it was adopted the slaughterhouse cases were ignored and refused to apply the bill of rights and why did it take years for the vision to be vindicated . There was a train trips that. Host took bastille and congress with the Supreme Court justice who wrote the slaughterhouse cases that bingham was talking to him every day evidently that may not have worked out so well but the Supreme Court often does not go with what we consider the correct interpretation they have their own way to do things and that is part of the reason. Support for the kinds of things he was interested in decline substantially in the years following the civil war once you got out after the end of the war there is much less public sentiment because it was hard people wanted to move on to other subjects and that had an impact the way the Supreme Court review these questions and not really until the 1960s that you saw the second reconstruction led by Martin Luther king. There are some judges that say they believe in the original understanding that the Supreme Court was correct because the 14th amendment was not supposed to do that but you say that bingham intended the opposite. Guest but if you say that bingham was an idiosyncratic person so we should not Pay Attention attention, and nobody would say that about James Madison , he was just one person so why should we care . There is no doubt as to what his views were but unless you want to say he ought not to be paid attention to or the legal skills were inadequate, you cannot reach the conclusion by a fair reading of the evidence. Host he is dismissed as fuzzy head or insignificant but you paid to a different picture but bring him to live with his contemporary account sharp been facing and all over he is nevertheless one of those endless debaters in the house give the picture of what sort of person he was. Guest and passion that and serious. Not someone with a great sense of humor he wanted to do serious things someone who believed strongly in in the quality of africanamericans. One of his best friends was his College Classmate who was africanamerican and that was unusual and extremely eloquent when the republicans in Congress Needed someone to make their case, they asked him. Now the style in those days could be frustrating when we read the speeches now but he was someone who was a relentless champion, the type of person if you were in a meeting someone you would respectfully listen to because maybe you did not like the person that you knew they had thought deeply and felt strongly so they deserve respect. Now he was a wonderful family man, married with three children who lived into adulthood. Host you talk about the tragedy. He lost many children to illness. Two of them died of typhus during the civil war. A willis pretty popular somebody people liked to invite to dinner because he liked to quote shakespeare. End all of that paints a picture of someone who was more a politician than abstract not a philosopher like jefferson but he liked the roughandtumble of policy to mix it up on the house floor some of the favorite aspects are the backandforth dialogue some from the south and some got nasty but he gave that as he got. Host how precise it was but he had an interesting french chef with general custer . That is true. Custer after lincoln the second most popular subject of biographies and i did not know until recently custer was from a town near bingham and he got him into west point and also the person who was the patron caught him out of trouble a couple of timing causally promoted him during the civil war telling the secretary of war you ought to look at custer he would make a great general. We know after little big horn he wrote a letter to custers father he was sorry but that is all we know what he thought about the end of custers career that did not work out so well. Host when bingham daughter is . It was a juicy story. [laughter] custer kept going to you bingham want a reference letter to west point and he said the authority promised a couple i cannot do it then custer had an affair with the daughter of a prominent republican in town and unusually they went to his congressman to say right him of a ladder and get him out of hear. [laughter] so the secretary of war was Jefferson Davis so there is a letter saying he recommends custer and strangely enough he was still fond of custer even with the affair so there was some chemistry we dont know about. He liked it is wine and so it is fair to say he think he was not a prude. Host however as if riding the 14th amendment was not enough but involves major constitutional defense including the trial of the conspirators of John Wilkes Booth and he tells a riffing story out he was criticized for his prosecution of the order of the boarding house and he advanced extremely expansive views of the president s authority in wartime relevant to our current debate that due process does not apply during wartime so they to be tried in a military tribunal as a member of congress during the civil war bingham said that the due process clause is a cause for peacetime you are entitled only what the government felt like giving to you. That suspended habeas corpus to say the president could detain without charges indefinitely. When the assassins when do is kill the president his coconspirators were arrested and were tried by a military court not civil court and bingham was a prosecutor with the Closing Argument and defended the constitutionality that these people were said a since the war was over and they were entitled to the jury trial. Bingham had a variety of arguments to some extent however resemblance made now with respect to guantanamo he argued that it is wartime it would be wrong to give these people a jury trial when they have committed an act of war and why should they get more process than a soldier in the union army who would only get a military trial . Even though there were a lot of people who did not think this was a constitutional process bingham was never apologetic favor of convicted but some of them were executed pretty thought it was a perfectly fair proceeding and he had done his duty by participating. How do you reconcile that with his great devotion to civil liberty . One answer is a distinction between war and peace you may think all necessary steps would have to be taken to win the war and it is different from what we may consider from their impact of Civil Liberties. Another thing one could say im not have evidence but eventually of his experience without trial as it became more criticized afterwards thinking that we ought to be providing these guarantees maybe that was the unfortunate exception as an example what we should not be doing in the future but there is some of causal connection. Host if you were a lot curler for Justice Scalia a law clerk for scalia what would you say . He would be for it because he made the statements very clearly as a member of congress and during the trial of course, the Supreme Court has not followed it in this respect either but no doubt as to where he stood and maybe that will be taken into account with due process. Host complete the fascinating other conflicts are the impeachment of Andrew Johnson that was so intricately tied up of the ratification of johnsons reluctance to enforce it to ask about the different stages. Tell us about the controversy of ratification those submitted to the union before they ratified then they would not have been gratified to get the supermajority so what was his plan . The great debate is what do we ask the Southern States to make them full partners again of the United States . Bingham view 14th amendment to guarantee fundamental rights that the law was inadequate and needed to be fixed if they had ratified it they could come back to the states again. In this respect his opponent is one to believe we should be demanding a lot more of the south including taking property away from the slave owners distributing it in disenfranchising those who were involved with the confederacy and they wage a great debate as to which would prevail and gerard ultimately did win of a with a few concessions what he wanted to do it was politically impossible you would never get the south to do for the freed slaves what we wanted if you took such a heavyhanded approach that was a controversial argument that did not play out historically the way gerard had helped but he had Andrew Johnson was against the 14th amendment entirely and did everything he could to block a fair bit ratification of setting up the impeachment by congress. Host tell us more why did they pass it and how does that relate to the 14th amendment . The difficulty was this house was occupied by the union Army Congress wanted the south to do certain things to have elections and set up government to give the freed slaves the right to vote but the president was commander in chief said he could tell the Commanding Officers dont do what Congress Wants you to do. One answer was the secretary of war like the secretary of defense now was Edwin Stanton they Work Together in the same little town and was a supporter of what congress wanted to do is what was hard for the president to get any contrary orders they would say dont Pay Attention so what if the president fire the secretary of for . Congress passes a law that you cannot fire in a cabinet member they meant him unless the Senate Approves a neighbor not going to. Now today a think this would be unconstitutional based on what the Supreme Court has said the at the Time Congress had the power to insist johnson eventually did fryer stanton the only way to get his perspective out there that is why congress impeached him or had an excuse to impeach him finally so they did. Host it wasnt trivial dispute it is the center of the clash between a president who doesnt want the enforcement and bingham and those who do but by striking that down he as a radical proposal the Supreme Court should be wiped out if they do not support reconstruction . It is fair to say that most of the reconstruction framers were worried what the Supreme Court would do in their solution was to prevent anything about the constitutionality of what they were doing this came in the form of a variety of threats with a law saying you need a super majority twothirds to declare the law unconstitutional and the fact in never made clear what that meant but the message was clear that although not stated openly if they impeach the president they can impeach Supreme Court justice so they found the way to about out to not decide the cases brought before them challenging the various tax of congress but some people say he was a moderate and in some respects this was true but it is not what you and i would call moderate just showing that people had different perspectives. He was not a fan of the Supreme Court with the dread scott decision in the attempt to strip the decision of those challenging lincoln in so does he think they should take the lead . Of course, he was the congressman so one might understand that but his initial proposal simply said Congress Shall have the power to enforce fundamental rights. That was modified because people thought that would give congress too much power or did not give the courts a role in a modified into the language we see now that he was active in the years following to put together legislation to enforce against the kkk or others in this of who tried to resist the will of the people. Given what the Supreme Court did to the 14th amendment after he left perhaps his suspicions were justified or his faith in of congress was not justified either because they stop cahow the vigorous enforcement of their guarantees. Host there is the debate today whether the Supreme Court was correct to strike down a landmark acts of congress to guarantee the 14th amendment of the Voting Rights act and what would bingham have sought . Guest and i think bingham would have taken a very strong Position Congress should be given deference to its enforcement of 14 and 15th amendment. He did die right to it but played in the construction of its. Lee would have been surprised to learn the important principle of the Reconstruction Amendment is that the states are all equal because they were not treated equally in the period immediately prior to the civil war the south was treated differently with ratification. So they were given a strong reason to ratify a under threat they would stay until they said yes. Being numb was not against the states public racial equality he had a Strong National prospectus. Host yet extremely powerful things to say that to eliminate any legislation did he believe that would protect africanamericans . His vision went beyond that the fundamental rights would apply to all citizens white or black in the states with the National Government with the states he would think of africanamerican equality matt was the key problem at the time so that was a central purpose they did not conclude it could be expanded further he believed they existed and he did not make statements that or hostile to the notion that other groups for categories human race would be included in the guarantee of equal protection. He did not believe that it protected women fully with Political Rights win the delegation he would rebut their claims . What about women . His position was basically there was no constitutional right to for women to vote but there was not a guarantee. He was giving a speech one day about equality and susan b. Anthony raised her hand what about women . His answer was i am not to the puppet of logic with the slave of practical politics. That is interesting political answer he says i would like to help you but i cannot get enough people to go along or his way to dodge the question . Card to say he did not say much about womens rates so it is not clear what position he had he probably did not have the vision much different than congress. But did only protected civil rights that he enters stood the equality guarantees not to permit the government in favor of what is involved. Some of his views were brodeur than what would be passed what you would have thought as opposed what the 14th amendment protected or said. For example, rowdy never took a direct position on segregation would get whole art of his life is hard to believe he would have supported it or thought it was constitutional. He believed someone believe dan formal equality under the law and affirmativeaction is troubling because it is not providing formal equality but functionally quality he did pull for things in the immediate aftermath of the civil war to give benefits only to the freed slaves but one could say in a limited temporary emergency setting but he never explained why so it is hard and to explain the historian says you cannot answer definitively read the book for your own conclusion that is very responsible that raises a difficulty because we have to care not only what being a thought also the conventional side ratified it because these are forced to ratify at gunpoint you cannot come back into the union unless you ratify was that the illegal or complicate the status . I dont think so. Although it is problematic. The look at other questionable legalities involved if you look too closely you may be disturbing at what you find. Bingham the original thought was if threefourths of the northern states ratify it is part of the constitution but he could not get enough people to go along so he went to plan b which was the south wanted to be given an opportunity to vote yes or no. It was not a normal election but these are not normal times the government had collapsed only the army could provide the framework for decisions so what else could you do . The south could just come back again because all these people would have died. Are there questions . Sure. Does that undermine the legitimacy that it clear overwhelming majority of americans on the victorious side believe dan . I dont think so. That brings us back to impeachment because after johnson fires he takes a very strong position the president cannot refuse to follow the act of Congress Tell us more about that position. The impeachment trial if you remember from clinton and members of the house act as the prosecutor in the senator is the jury so he gave the Closing Argument it took three days and it was a big event. He made a number of claims that are hard to square. Prosecutors for advocating for something to put things up strongly to win their case that does not work for example, he said the president had no right to refuse to obey an act of Congress Even if he thought it was unconstitutional it led people pointed out what if Congress Passed clearly illegal thing . His answer was that is why we have elections but the problem is there were not elections in the south and not great to say the courts to do something because the Supreme Court was threatened with terrible things if they would try to interfere. It is fair to say that bingham position probably has some merit with president ial refusals to enforce the law we may say that is going too far but bingham did his best to convict johnson and remove him some of the 14th amendment could be ratified. Then leading the impeachment charge and yet bingham argument was rejected what duchess that say constitutionally about the standards for impeachment . To carry on constitutional law . Johnson was acquitted by one vote one vote short of twothirds. Partly because johnson met with senators and a sure that if you dont not guilty of stop interfering with the 14th amendment and give you shirker palms ironically one of the senators that is discussed in a profile of courage he voted not guilty he stood up to the party but he got denies jobs for his friends. Any way the effort at impeachment failed but the 14th amendment was ratified if you think that was the gold is not so clear that his argument was and is rejected you could say simply because he opposed the policies of congress. In that sense while messy the end result worked out reasonably well. Via overnight with a conservative group that said president obama should be impeached he is refusing to carry out with the employer mandate. Guest the one thing we can say is bingham was a strong proponent of congressional power so certainly in the dispute he retake the side of congress of the zero it did not apply to republican president s. He was reluctant to vote for impeachment months before he agreed to that that they needed a reason end it was the reason that could convince enough senators to vote the conviction. So that will not work so why bother doing it . Host that sounds like the case. He had his second act. And then went off to be ambassador of japan and then missed the of Supreme Court refusal of followup. 8072 in congress 20 years people our tired of him in his district and after he leaves president grant appointed to be ambassador of japan is 12 years over there by all accounts had a wonderful time with his family. He came back and retired and was 70 and lived to me 85 unfortunately he just got old and outlived his money. No pensions. So by the last years he had health problems, dementia and pay 1900 the 14th amendment was not doing what he had hoped. Of africanamericans were not voting in the south are given equal treatment or fundamental rights and would he died the obituaries did not even mentioned he wrote this part of the amendment there is a statue to him and his style that has the inscription it doesnt say anything about the 14th amendment but he was for tariffs to protect industry. [laughter] that does not seem very arousing so that was said and because he was in japan in the years immediately following with those interpretations he was unable to influence either by arguing cases and we all might have suffered as a result of his absence. Host it says photo by the author but theyre not easily available totos in that you have to take the pitcher of the statute so when it went up nobody remembered he wrote the 14th amendment why has he been so ignored . And. Guest part of the problem during the period of jim crow segregation the leaders of reconstruction reviewed the unfavorably. There is a movie of Andrew Johnson in the 40s where he is the hero and what a great guy to bring america to gather and stevens is played by very more a and depicted as a villain so until the Civil Rights Movement came along people would not take seriously the idea that folks like bingham were pursuing a cautious that was just. Since then some of that discussion is in a broader discussion of what do you think of applying bill of rights to the states in if youre not on board with what he wanted to do you attack him rather than the idea is. Hopefully that will change. Maybe this book will help. Host it should and will the obvious question is now cool place bingham in the movie . Someone with long white and chop sideburns. Why not talk takes tom hanks . He can play anybody. Host we have time for one word to questions. Will lead bingham its the of the government shut down going god right now isnt what is going on between the republicans and democrats . Guest bingham was a very partisan person he did not much like democrats and tell whole of reconstruction was partisan there were is a very few democratic votes at that time. The parties were different than democrats were from the south end they believed in Different Things then. Of finance between congress and the president were very bitter when a senator was beaten senseless on the floor of the senate and people carry pistols into the chamber and this would have been comfortable for what you fought was right and beyond that what they would think of the specifics of health care. Part of the remarkable language is any person. That doesnt mean a citizen. That includes children, a demented people, people who are not competent. Do you think bingham really understood what he was proposing when he said any proposing like children and a whole variety do not get equal protection and we incarcerate old people all the time the ball 1 Million People without to process. Liddy think he had in mind when he said any person . Guest one thing he had in mind to protect people who were not citizens. In the grants or lawful residents said he was quite clear they had rights also. They have the right to free speech a fundamental right that apply to all peoples of decisions are noncitizens he wanted to make sure that recent immigrants were protected in their basic rights. Now whether to the extent you talk about all those categories, in general but if he thought about children or the elderly, i dont know. He had in mind noncitizens were protected in their fundamental rights. For the gettysburg anniversary the movie came out on the anniversary. It was called copperheads they were caucasians that were opposed to slavery they were opposed to slavery they thought it was a moral evil however there were antiAbraham Lincoln because they took away habeas corpus even though they were opposed to slavery but hate Abraham Lincoln that could have been innocent like human rights were violated. The only big star was peter fonda someone played johnson and one votes saved him but that was his his brother of what they cut a deal. Johnson took his own personal wealth to give it to his brother in law to influence people with the backroom deal . Put the movie is good. Is a great recommendation host what was his relationship . Guest not friendly. He called them traitors in the gave a fiery speeches in Congress Attacking the most prominent of the copperheads from most prominent the ohio and in dallas have much sympathy for those that were antiwar during the civil war. Host our goal is for everyone to read the constitution and educate yourself i cannot imagine a better way about the 14th amendment than reading this spectacular book. Please help me to thank Gerard Magliocca. [applause] he will be signing books. Please come out to buy them and we will continue our constitutional conversation. [inaudible conversations]. Next on booktv she talks about the role of u. S. Special Operation Forces in the world today and argues that they will be this countrys primary military force for many years to come. She was in a special office in afghanistan in 2011. This is