Sunday, September 20, 2015

The Civil War and Reconstruction - Amendments 13-15 (and the 24th), Plus a Special Treat

After another unforgivably long gap, and another pilgrimage to the National Constitution Center, it's time for the next installment.  In keeping with my earlier plan of grouping similar amendments together, this set is pretty handy, as they are all close together chronologically and in subject matter.

Often called the Reconstruction Amendments or Civil War Amendments, numbers thirteen fourteen and fifteen all deal with the causes and effects of the Civil War and its aftermath.  They were ratified during and after the war (13 - 1865, 14 - 1868 and 15 - 1870)  and dealt with (some of) the unresolved issues of the day.  In this blog, we'll concentrate on the thirteenth and fifteenth Amendments and touch on the twenty-fourth, too.  We'll briefly mention the fourteenth, but that one needs an entry all to itself, and why that is will be clear later.

The Thirteenth Amendment says:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Pretty straightforward.  This amendment ended slavery in the United States and its territories.  Period.  It's often thought and taught that Lincoln's Emancipation Proclamation ended slavery, but it had no force of fundamental law.  It was great a bit of writing, of course, but it was really an expedient wartime act, not a fundamental change in our country's governing document.  The 13th Amendment was the focus of the recent Oscar-winning movie "Lincoln" by Steven Spielberg.  Though serious historians may argue the details of the debate over the amendment as shown in the film, I'd still highly recommend the movie to one and all, if for no other reason than to see Daniel Day-Lewis' stunning portrayal of Lincoln.  
The Fourteenth Amendment will get short shrift here, and I promise to make it up in the next entry. The reason for that is that the 14th is very dense and is probably the amendment (outside of the Bill of Rights Amendments) that has the most direct affect on out daily lives and contemporary political debates and discussions.  You may be surprised at how far-reaching it has become, on topics from abortion to same-sex marriage to civil rights and affirmative action and more.  That may be a really long blog...
So, let's skip ahead to the Fifteenth Amendment, another short and sweet one.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Again, pretty clear and unambiguous.  Race is no basis for the denial of voting rights.  (Sadly, gender still was - it would be 50 more years before the 19th Amendment was ratified, lifting the barrier that kept women from voting.).  
The voting rights of black Americans was further reinforced a century later with the elimination of the poll tax in 1964 with the ratification of the 24th Amendment.  
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The poll tax had been adopted in many of the former states of the Confederacy in order to discourage voting by blacks and poor whites, though by the time the amendment was ratified, only five states still had a poll tax, and the amendment barred such taxes for federal elections.  In 1966, the Supreme Court ruled in Harper v Virginia Board of Elections that poll taxes of any sort were unconstitutional, saying they violated the Equal Protection Clause of the 14th Amendment (see why we have to do the 14th on its own?).
There is one fundamentally important point I want to make here.  Read the amendments above very carefully.  There is some language usage that needs proper emphasis.  It's often said that the fifteenth amendment gave blacks the right to vote and the nineteenth gave women the right to vote.  Not true.  The amendments, as written say nothing about giving anyone the right to vote.  They say that the right of (blacks or women) to vote will not be denied based on race or gender.  In other words, the right was always there, as a fundamental thing.  The amendments merely removed the obstacles in the way of exercising those inherent rights.  That's critical to understand, not just in these cases, but when trying to understand the Constitution in general.  Nothing in the document gives anyone any rights.  Rights are not the government's (or the Constitution's) to give.  The Constitution merely restrains the government from placing barriers to the exercise of those inherent rights.  Go back and read the Bill of Rights.  Not a single right was granted, but all rights mentioned are assumed to pre-exist and are merely protected by the amendments.

Now, for a treat.  Thinking about the Civil War/Reconstruction Amendments brings to mind the recent controversy over the Confederate battle flag.  I have an essay here, written by Duane J. Rodel, which I think all of you will find well-reasoned and thought-provoking.  
To establish Mr. Rodel's bona fides, he is a graduate of Ripon College, where he earned degrees in History and English, was named to the Dean's List and graduated with departmental honors in History.  He also earned a Master's Degree from the highly-regarded School of Library and Information Studies at the University of Wisconsin, where he specialized in archiving.  He has worked as a digital archivist at the Wisconsin Veterans Museum, where he embarked on a multi-year project to make all of the museum's Civil War records digital and available online for the public to view at will.  See here for a preview of some of the museum's archival material.  There is no one I know personally who is better qualified to comment on Civil War history and its context as it relates to our modern time.  Enjoy!

On the Confederate Battle Flag

In the wake of the horrific and tragic shooting in Charleston, there
has been a lot of figurative ink spilled over a photo of the shooter,
Dylann Roof. Seen posing in a photograph with a Confederate flag - to
be precise, the Confederate Battle Flag, designed by William Porcher
Miles in 1861 - the uproar has prompted a number of Southern states to
begin reconsidering its use in their iconography and its display
on public grounds, and retailers to pull it from shelves physical
and virtual.

Comparatively less noise has been made about the other photo, which
shows Roof burning a US flag clutched in his hand. This photo,
however, is the more telling one, and reveals exactly why the
Confederate flag needs to be retired to the museum and the
re-enactment once and for all.

Whatever it is supposed to mean now, the cold hard truth behind the
flag is that it was designed for an illegitimate state: a state which
came into being not as a result of an over-reaching edict from the
President or Congress, but because of the simple results of an
election, a state that was founded not even with the implicit intent
to preserve and perpetuate racist human slavery but the very explicit
purpose to do so, a state whose first significant act was opening fire
on U.S. troops at a U.S. military installation, Fort Sumter. This
state was the deadliest foe the United States of America had ever
faced and remains its deadliest, two centuries on. Only World War II
had more combat casualties, and only if you combine the total
casualties of every other war before and since the Civil War will you exceed
it. It should be inconceivable that anyone who considers him- or herself a
patriot for this country to cling to such a symbol, and the
photographs of Roof only go to show that true love for this country
and her people are fundamentally incompatible with clinging to the
legacy of the Confederate States.

Those who survived that hellish maelstrom felt its affects the rest of
their lives and also felt, as strongly as any veteran of wars of the
20th and 21st century, the desire to not see their sacrifice and the
sacrifices of their family, friends, comrades and neighbors
invalidated. Lucius Fairchild, Civil War veteran and tenth Governor of
Wisconsin, had this to say about an executive order issued by
President Grover Cleveland mandating the return of captured
Confederate battle flags:

"May God palsy the hand that wrote that order! May God palsy the brain
that conceived it, and may God palsy the tongue that dictated it!"

Aside from putting to bed the notion that venom in politics is a
modern invention, it shows just how strongly and passionately veterans
of the Civil War felt about the importance - and moral necessity - of
what they had done. Cleveland wisely rescinded the order shortly after
this outburst.

The notion that neither North nor South was the antagonist or
protagonist of the war is historical revisionism, a revisionism so old
it has itself become history. The romance and myth of the Lost Cause
of the Confederacy - the idea that noble, idyllic antebellum life was
shattered by a tragic war which was unavoidable and for which nobody
holds fault - dates back to 1866, a mere year after the war's
conclusion at Appomattox and the assassination of our President, and
from that day forward apologists have been tireless in redefining and
obscuring the war's cause and origin in our collective memory. It has
since metastasized and spread beyond the borders of the former
Confederacy and infected mainstream thought across the United States,
and cultural landmarks, such as “Birth of a Nation” and “Gone With the
Wind”, have unfortunately only helped cement its place there.

This, combined with Nixon's use of the Southern Strategy in the 1960s,
has created a bizarro world where some Republicans go out of their way
to defend a symbol that our first Republican President was murdered
for defeating, and for which thousands of American soldiers died to
remove from our shores.

Some have argued that time has divorced the flag from its legacy as a
symbol of the Confederate States of America, and that it now only
stands to champion Southern values. If that is indeed the case, then
why does its removal matter? If it has become innocuous, then getting
rid of it or replacing it should not be the trauma that many are
making of it.

There is much that is great about the South - some of the most
uniquely American music, cuisine, architecture, and art comes from the
South. I have to ask, then, why not rally to those sorts of icons as a
signifier of Southern identity instead? Why crouch forever in the
shadow of an illegitimate, failed state which existed less than a
decade and which killed hundreds of thousands of Americans and
enslaved thousands more in that failed bid to exist?

Similarly, there are great military minds and traditions that have
arisen in the South before and after the war that deserve greater
praise than her rebellious generals. Off the top of my head, General
Douglas MacArthur - the great commander who led us to victory in the
Pacific in World War II - was a son of Arkansas and a graduate of West
Texas Military Academy. I am sure there are many others besides him.
Norfolk, Virginia is the beating heart of our Navy. Aviation has its
roots in the soil and sandy beaches of North Carolina. All of this
greatness is divisible from the legacy of the Confederate States, and
if anything, surpasses it. Nathan Bedford Forrest would not be worthy
to shine MacArthur's boots - he is certainly not worth a statue.
To some, it's a problem of timing: coming after successive waves of
politicized racial unrest and a breakdown in law and order that has
polarized the nation, some Republicans feel it would be handing another victory to
the Democratic party and its agenda. I say that the controversy over
the flag is neither here nor there - it's a reckoning that is
one hundred and fifty years overdue. I do not share the beliefs that
many rallying under the #TakeDownTheFlag hashtag do about this country
- that racism is part of our DNA or that it is an inescapable original
sin, for which we must endlessly self-flagellate. But I recognize
that, even when you are coming from the wrong premise, you can
occasionally draw and fight for the right conclusion. As the cliché
goes, "Even a broken clock is right twice a day," and the hour has
finally struck for this last legacy of the Confederate States.

As a Catholic, part of my religious education and upbringing involved
not just learning about the good parts of the history of the Catholic
Church, but also recognizing the bad. I can be inspired by the great
artwork and architecture of St. Peter's Basilica without losing sight
of the overreach and corruption of the medieval church in selling
indulgences. So too, I think Southerners can - and must - learn to
recognize the mistakes in their past, even as they celebrate their
glories, and to stop mistaking one for the other. And part of this
process must involve putting aside that flag once and for all.

© Duane J. Rodel, July 6, 2015, Madison, WI


  1. I would have to respectfully disagree with Duane that the Confederate flag must be "confined to the museum and the reenactment." To ban the Confederate flag is to take away the right to freely express yourself, a right that goes back to the days of the founding fathers. If a legislation was passed to ban the flag, we would truly be no better than Mr. Roof burning the American flag. We would be taking away the basic rights of this country. When you think about it, the Confederates actually gave an example of how America was created: Standing up for what you believe in and fighting for it if necessary. Granted, they were sadly misguided, but the case remains that they were quite patriotic. I do not want to seem on the side of the Confederates-I am proud to be from the North. Some people, by the same token, could be proud to be from the south, but not to the same degree as Roof. To take away free use of the flag is to take away that pride. It is simply not American.

  2. Adding to that: Duane, with your degree in history, you know that if we forget our history, we are in danger of repeating it. If the flag is banned, we could be starting on that path.

  3. Riley: Thanks so much for joining the conversation! I appreciate you taking the time and putting a lot of thought into commenting here. I'll start by saying that I think you may not have entirely understood Duane's points, but I won't presume to speak for him (though I will notify him so he can respond in his own words). For myself, I would certainly never support a ban on the Confederate flag, especially in the hands of private individuals. It may be my PREFERENCE that they not fly it, but I'd never advocate a ban (like the one in Germany, which bans, under penalty of criminal law, the flying of the Nazi swastika - understandably. The Confederates were certainly misguided, but were no Nazis.). I might tell someone who wants to fly it that I disapprove (and that it makes him look kinda like an idiot, but hey - no law against that!). I do , however, support SC governor Haley and the taking down of the flag on government property. At the very least, it's a symbol of disunity with the other states. And as far as forgetting history, I'd say that's precisely why we have museums, so artifacts like this can be displayed and put in their proper context. Far from forgetting history, it ensures that we never forget. In sum - I support taking the flag down from government property, but not on any sort of legal ban. The flag is part of our collective history and should be studied as such in the proper context. Thanks again, Riley! Looking forward to hearing from you in future posts!

  4. Greetings, Riley - this is Duane. Let me clarify my meaning with regards to the "retirement" of the Confederate flag.

    I am also an enthusiastic advocate of the Bill of Rights and the First Amendment. I would not support in any form a legislative ban on display or use of the Confederate flag, nor would I trust the current administration with anything resembling that. Indeed, in the wake of the Charleston shooting there were examples of overreach which troubled me. For example, Apple pulled several strategy games from the App Store which used the flag, games which were educational in nature and used the flags in their proper historical context. By all means, I support the use of the flag in its historical context, and would oppose any ban of it, for to ban it would endanger us for the reasons you mentioned, as well as let us forget the evils which it was raised to defend.

    What I do want, however, is for Southerners to - voluntarily - stop embracing the flag as a *modern* symbol of their culture. By necessity, this means whitewashing the flag, as well as the CSA, which was, inarguably, designed for the purpose of creating, maintaining, and extending a slave empire, a design which they were ready to accomplish by breaking apart the United States of America for that sake. The South is, as a culture, diminished by continuing to crouch in the shadow of the Confederacy, when there is so much from before, and so much after, the Confederacy worthy of exaltation and praise. Rejecting the flag does not mean destroying Southern identity wholesale - far from it. It means cutting down what is, in my eyes, a destructive cultural weed, and allowing a far more wholesome crop to grow in its stead. That is, however, a task which Southerners must elect to do on their own, and nothing that can be forced by the hand of any government.

    1. Ahhh, that's what you meant. Thanks for the clarification.

    2. Thanks for being part of the discussion, Riley!

  5. Good stuff, gentlemen.

    From my perspective, the best reason to retire what most people refer to as the "Confederate Flag, " really the battle standard of the Army of Northern Virginia, is that it does not signify Southern culture - whatever that is. It signifies, in its original use (as DJ points out), armed insurrection against the United States in defense of the institution of slavery. Read the articles of secession of each of the confederate states and you will see slavery explicitly referenced. It signifies, in its later use, explicit, obstinate obstruction of federal efforts at desegregation during the civil rights movement. The flag had already disappeared into the museum once after the Civil War, and was resurrected by segregationists in the 1950s and 1960s. Only then did it start to fly over state houses and courthouses and universities and schools, as a symbol not of Southern heritage, but of segregationist hatred and defiance.

    I hear this cant of "heritage not hate" is either disingenuous or poorly informed. It symbolizes a heritage OF hate. Either treasonous rebellion or racist segregation.

    There are indeed many wonderful things about the South, but the Confederate battle standard is notherwise the best symbol of those things. I agree that a ban would be inappropriate and counterproductive, but its official use should be terminated.

    My $.02.

  6. "Notherwise?"

    My phone thinks notherwise is a word. And apparently one that I am more likely to use than "not."

  7. Hmmm....not sure who "Banned User" is, but thanks for chiming in!

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  10. Thanks, Mike. There must be a story behind that name....