Lyrics:

Mine eyes have seen the glory of the coming of the Lord

He is trampling--

Brian Lehrer: That's not The Brian Lehrer Show theme, it's the Battle Hymn of the Republic. Yes, it's a song my next guest recommends replace The Star-Spangled Banner as the national anthem. Why? That's one of the things we'll talk about now as we welcome University of Pennsylvania law professor, Kermit Roosevelt III, on his new book, The Nation That Never Was: Reconstructing America's Story. This book is a very earnest attempt to grapple with the increasingly prominent intention these days between being honest about all the racism and oppression in American history and the desire to be proud of our country and have hope that it will live up to its stated ideals at some point.

Maybe the Battle Hymn symbolizes that better than the anthem we use. Consistent with the book subtitle, reconstructing America's story, one of Roosevelt's key suggestions is to think of the founding of the real United States, not in 1776, nor in 1619, but in the era of reconstruction after the Civil War. Since many of you are probably wondering, Kermit Roosevelt, besides being a UPenn law professor and author of several other prominent books, is a great, great-grandson of President Theodore Roosevelt. Professor Roosevelt, thanks for coming on. Welcome to WNYC.

Kermit Roosevelt III: Thanks so much for having me.

Brian Lehrer: We all know what the US Constitution is, more or less, the original charter of the country, plus the Bill of Rights and all the other amendments that came after. You refer to something you call the Reconstruction Constitution as vastly better than the Founders' Constitution, and maybe a good starting point for taking honest stock of the past but in a frame of positive foundation for the future. Tell everybody who doesn't know, what is the Reconstruction Constitution?

Kermit Roosevelt III: The Reconstruction Constitution is the constitution that you get after the Civil War when Congress really basically wipes out the former Confederate States and it imposes this new political order, where you've got the 13th Amendment banning slavery, the 14th Amendment giving rights to equality and rights against state laws, which we didn't have before, and then the 15th Amendment, which prohibits racial discrimination in voting. If you think about American ideals, we are opposed to slavery, we believe in equality, we believe in liberty for everyone. All of those values really aren't in the original constitution, the one written in 1787, even if you add in the Bill of Rights.

Those values really come in with reconstruction.

Brian Lehrer: You are right, the Reconstruction Constitution destroys the Founders' Constitution, and not by the method the Founders' Constitution sets out. What do you mean by that?

Kermit Roosevelt III: What I mean by that is we don't pay a lot of attention to the way that we got the Reconstruction Amendments, particularly the 14th. What happened was the Civil War was over, the South accepted that slavery was done, at least in name. They tried to re-impose slavery in all but name with what's called the Black Codes, so they had overt racial discrimination in a lot of different categories of law. Congress unwilling to accept that, proposed the 14th Amendment which guarantees birthright citizenship. It gives people, as I said, rights to equal treatment by the states, it gives rights to all persons, not just citizens. The 14th Amendment was rejected. This is what we don't know.

The 14th Amendment was approved by Congress, it was sent out to the states, and the former Confederate States rejected it. The 14th Amendment was dead. It was not going to become part of our constitution. That's when Congress enacted the Reconstruction Act and basically wiped out the former Confederate States. It said, "No government exists in these states. We're putting them under military control, and now we're going to make new states." They made new states by saying the political community of these states includes the former enslaved people but doesn't include former Confederates.

They are really making a new political community, a new state, and it's those new states that make our new nation by ratifying the 14th Amendment.

Brian Lehrer: Some of the people in the Southern states, the ones you just referred to as Confederates, lost their right to vote?

Kermit Roosevelt III: Yes. They lost their right to participate in the state conventions that drafted the new constitutions and they were excluded from voting pursuant to the 14th Amendment.

Brian Lehrer: That's how the 14th Amendment equal protection and all of that got ratified because it does need, in addition to Congress, what is it, three-quarters of the states?

Kermit Roosevelt III: Three-quarters of the states. We like to tell ourselves that we're the same nation that we've always been and that the Reconstruction Constitution is adopted through the Article 5 process, but it's really not. It's a very radical and forceful transformation of America.

Brian Lehrer: Why do you say, instead of it amended the Founders' Constitution, that the Reconstruction Constitution, those 13th, 14th, 15th post-slavery amendments destroys the Founders' Constitution?

Kermit Roosevelt III: Because the fundamental orientation of the Founders' Constitution is we trust the states and we're worried about the federal government. We think the federal government might become a tyrant. Because basically in 1787, when people are drafting the first constitution, they're thinking about the Revolutionary War. They're thinking about King George as sort of the counterpart of the national government behaving tyrannically, and they're thinking of the states as the defenders of liberty. What happens in the revolution is the national government, the British government, is oppressing the colonists and the state militias stand up to defend the rights of the colonists.

Now that happens in the Civil War, too. The Confederate perspective is, "The national government is oppressing us," and the states stand up to defend the rights of their citizens, but the national government wins the Civil War. The Reconstruction Congress when it's redoing our constitution is no longer thinking that the states are the good guys, which is the original vision, they're thinking the states are the bad guys, the national government is the good guys. It turns our constitution upside down and inside out. We get this new structure with a big powerful federal government, and the federal government is understood to be the protector of people's rights, not the threat to them.

Brian Lehrer: Because slavery and then the Black Codes, Jim Crow, were done in the name of state's rights, and the federal government was the protector of the individual rights.

Kermit Roosevelt III: Right. Exactly. In the world of the founding, the federal government is supposed to do a limited set of things. It's supposed to do foreign relations, it's supposed to handle issues where the states can't cooperate and they need to act together, but it's not supposed to come between the states and their citizens. It's not supposed to say anything really, about how the states treat people who live in those states. With the 14th Amendment, that's when we start doing that, most notably by saying that formerly enslaved people are going to be citizens, they are going to be members of the state political communities, regardless of what the states want.

The states can't even set the boundaries for their own political communities. Then we get all of these rights against states, our free speech rights, our freedom of religion rights, our freedom from unreasonable search and seizure. All of those rights with respect to things, the states do, those come from the 14th Amendment because the original Bill of Rights only gives you rights against the federal government.

Brian Lehrer: UPenn law professor, Kermit Roosevelt III, with us with his new book, The Nation That Never Was: Reconstructing America's Story. Listeners, we can take your thoughts or questions about, for example, identifying more with the re-founding of this country after the Civil War as a means to help create a better American story for the future and so far we've been talking about history, we'll get to the future or anything related for Kermit Roosevelt III. Again, the book is called The Nation That Never Was: Reconstructing America's Story. 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer.

I guess we should say that your book is largely about race in this respect, but you acknowledge in addition, that one of the biggest flaws of the Reconstruction Constitution was, while it gave Black men the right to vote, at least on paper, it did not yet include suffrage for any American women. I'm curious since you study this history, who made that decision? Who wrote the Reconstruction Constitution? Did they consider allowing women to vote at that time?

Kermit Roosevelt III: It's the Reconstruction Congress that's writing the amendments, someone named John Bingham, who should be much more well-known than he is, is probably the primary drafter of the 14th Amendment. There was a debate about the inclusion of women. You can go back to the very early days of the drafting of the original constitution and you'll see women, in particular, are saying, "We would like equal rights. We would like to be real members of this political community, exercising political power." Those arguments just don't get heard until the Progressive Era, really.

Brian Lehrer: Even with all that in the 1860s, the Gettysburg Address, which you cite as Seminole in this story, and the Reconstruction Constitution, you acknowledge, as we all know, that progress after slavery has not been a story of continuity. In fact, you use the words, terrorism and violent revolution to characterize the white racist movement that caused reconstruction to fail. You write it's all about races, the 15th Amendment and much of the 14th Amendment, and even undermines the 13th, which bans slavery per se. I think most of our listeners know in general that that happened. That reconstruction failed.

The Klan surged in the 1880s, surged again in the 1920s. Can you talk about the rise of the post-slavery racist regime in those constitutional terms though?

Kermit Roosevelt III: Again, this is a history that I think people do know, as you said, in general outlines, but I think they don't know the details because the details are really horrifying and we don't like to dwell on that. What happens is you've got reconstruction, and in many ways, it's a great success. There are integrated schools in parts of the south. There are integrated police forces. There are social services being provided on a scale never before seen in the states of the former Confederacy. Of course, the former Confederates don't want to accept this. Really, what's supporting the reconstruction governments is the presence of the federal military, the US Army.

When the US Army withdraws because the north loses the will to maintain this occupation of the south, you get an insurgency, and it's white paramilitary organizations. They basically overthrow the integrated reconstruction governments of the south and there are massacres and there are basically battles. Military coups sweep over 1/3 to 1/2 of the country. It's very much a violent and illegal transfer of power back to the whites in the south.

Brian Lehrer: You write about how the bad guys won at that time. You wrote, “The racists are willing to fight, the non-racist are not, and the anti-racist are too few to hold onto their gains.” Can you talk about the middle group there, the non-racists who were unwilling to fight?

Kermit Roosevelt III: Yes, I think that's very important because what you just described there really is the basic pattern of American history. We see it over and over again. You've got a small group of people who are really committed to racial hierarchy. They're really invested in it. In the original constitution era, these are the slaveholders. Later on, they're the white supremacists, but they really care. Then you've got a larger group of whites who aren't necessarily white supremacists. They're not really invested in it, but they do care about unity and civility. They don't like conflict, and particularly, they don't like conflict among whites. They're not really willing to stand up and fight against the racists.

Then you've got the anti-racist group, which is a lot of them Black people, but also some white people. Typically, they're just not enough of them and they don't have enough power to stop the active racists if they're not getting help from the mainstream white moderate. There are moments in American history when that happens, but there are very few of them.

Brian Lehrer: Which makes me think of one of Luther King's letter from a Birmingham jail, which addresses the so-called white moderate who supports civil rights, but doesn't want that much conflict, and even to some of the things going on today. This is really a through-line in American history, isn't it?

Kermit Roosevelt III: Oh, yes, absolutely. Martin Luther King is definitely one of the other historical episodes I'm thinking about, where you had exactly this. The white moderates are saying, “Of course, we believe in equality. Of course, we're against racism, but let's not create conflict. Let's not be divisive. Let's all join hands and move forward together.” They have this idea and it's one of the things that our standard story of America tells us, is that if you just wait, America will work itself pure because our founding ideals have always been about equality. What I'm trying to say is that's not true.

Brian Lehrer: Another thing that jumped out at me from the book is that, although it was obviously finished and going to press before this recent rush of Supreme Court decisions, the Supreme Court, which saw the focus of controversy today, and even questions about its legitimacy, does not fare well in your telling of history. For example, the Supreme Court struck down some of the most important reconstruction era laws, right?

Kermit Roosevelt III: It did. Certainly, if you look at the broad sweep of history, the Supreme Court has not been a force for progress. There's a brief historical period, what we call the Second Reconstruction really, which is the Warren Court when the Supreme Court is pushing forward in the name of racial equality. Generally speaking, the Supreme Court doesn't do that. It pushes back against reconstruction. What we're seeing now, I think is really a pushback against the Second Reconstruction. When I teach constitutional law, I teach it in terms of historical eras. The period of time when the white supremacists take back power in the south, that's redemption following reconstruction.

80 years or so later, you get the Second Reconstruction. I think what we are seeing now is the second redemption.

Brian Lehrer: The second redemption. One way that you put it in the book is that the Second Reconstruction of the Warren Supreme Court and the second redemption of the Reagan Revolution meet and the Reagan Revolution eventually wins leading up to today. Can you talk about that word redemption, not as well-known as reconstruction?

Kermit Roosevelt III: Right. Redemption is not as well-known as reconstruction and it strikes people as an odd term a lot because we think of redemption as a good thing. Redemption is the term that the people who were doing this used. The people who were taking back power in the south. They said they were redeeming the south. They were trying to restore the pre-civil war order. From their perspective, I guess, it was a good thing we used this term redemption. From our perspective, I hope we can all agree, it was a bad fit.

Brian Lehrer: Let's take a phone call. Don in Harlem, you're on WNYC with UPenn Law Professor Kermit Roosevelt III. Hi Don.

Don: Hi, Brian. Thank you for [unintelligible 00:16:15] I enjoy your show. There's a question. The South Carolina legislature in the 1860s created a constitution that later was, by the Supreme Court, invalidated. What law did the Supreme Court invalidate the South Carolina Constitution that was created right after reconstruction?

Brian Lehrer: Professor Roosevelt, are you familiar with that, a South Carolina attempt to undermine reconstruction?

Kermit Roosevelt III: I'm not familiar with that precise decision, but I can tell you, there's a pattern throughout the former Confederacy, where you've got the original revolutionary constitutions that the States draft in the 1770s and 1780s. Then in the south, of course, you've got the secession constitutions, so they revise their constitutions. Then as part of Reconstruction, they draft another one, and this is where I say the States are basically remade because the drafting of the reconstruction constitutions, the formerly enslaved people are a part of that, the former Confederates are not.

Then after redemption, again, you get new constitutions and the redemption constitutions reinstall the racial hierarchy. Getting rid of an 1860s South Carolina constitution, I'm not sure whether that was a reconstruction constitution or a secessionist constitution. A secessionist constitution could easily have been invalidated.

Brian Lehrer: Don, I hope that's clear. Thanks for chiming in again today. Please, keep calling us. Claire in Westchester, you're on WNYC. Hi, Claire.

Claire: Hi. I love your show. I always thought that the 14th Amendment was the way we could stop Trump, ban him from ever becoming a candidate for president again, but I didn't hear anything about that. I've heard that the 14th Amendment, one of those things is that. Secondly, I wanted to know, how can you spread your idea of that new constitution, the reconstruction constitution, which sounds so much better than what we have, and also the new anthem that was played at the beginning instead? I also don't like the pledge of allegiance to the flag. [crosstalk]

Brian Lehrer: As opposed to some other kind of ritual. Claire, thank you very much. This flips us back to what we covered in the first hour of the show, Professor Roosevelt, which was the January 6th select committee hearings. I think Claire is using your presence as a 14th Amendment scholar to ask, is that a way to prevent Donald Trump from running for office again?

Kermit Roosevelt III: Yes, those are all great questions. The 14th Amendment does disqualify some people from holding office. It disqualifies people who participated in insurrection against the United States or gave aid and comfort. It was pretty clear that that was intended to disqualify former Confederates from sitting in Congress. It was pretty clear for those people how that would be enforced because Congress is the judge of the qualifications of its members and Congress could just refuse to seat those people. If you're trying to use that against Trump, you've got to establish that he participated in an insurrection, and then you have to figure out how that gets proved.

It's possible, but there's a fair amount of work that would have to be done. It's not as obvious as the original application of that provision. That's the first question. Second question was about the new anthem. The reason that I think the Battle Hymn of the Republic is better than The Star-Spangled Banner, is basically because the Battle Hymn of the Republic expresses what I think of as the values of reconstruction America, which is we are willing to make sacrifices to help other people. We're willing to make sacrifices for the common good.

In the Battle Hymn of the Republic, this is phrased as Christ died to make men holy, let us die to make them free. People are going to lay down their lives to end slavery. That's a great message, and that's a good war. The Civil War is a good war. If you look back at the revolution, it's not as good, this is 13-slave holding states fighting against a nation that doesn't recognize slavery in England anymore. During the revolution, the British are freeing slaves. The Patriots are complaining about that. They're demanding the right to re-enslave these people and The Star-Spangled Banner, although it's about the war of 1812, actually--

Brian Lehrer: Hey, hang on a second. Let's listen for a sec.

Glory, glory Hallelujah

Glo

Brian Lehrer: Appropriately, this is the US army band version complete with chorus. Somebody else is calling in. We're not going to have time to take the call, but saying, "Oh, America the beautiful will be better, why do we need all this religion in our National Anthem?" Professor Roosevelt.

Kermit Roosevelt III: America the Beautiful is also good. Why do we need so much religion? America's a pretty religious country. Religion is a way to motivate people to do the right thing sometimes. It's also used as an excuse to do the wrong thing, but I'm not in favor necessarily of making our political discourse totally secular in the way that say France does. I think we should recognize that religion can be used for good and bad purposes, and some people find it a very important motivating force.

Brian Lehrer: To the caller's final question. Maybe the end part of this conversation, your book at its heart, despite grappling with all this horribleness in American history, it is a framework for moving forward with hope because the Reconstruction Constitution even exists. Do you want to try to give people an injection of that hope since so many African Americans and women and immigrants and LGBTQ Americans and others are feeling these days like this country just keeps falling back into white, straight, male, nativist, conservative dominance, and physical or legal violence against almost everyone else?

Kermit Roosevelt III: The answer is it does keep falling back and we really don't have a story of steady progress. If you think that our fundamental values have been there from the beginning and we're just developing them over time, that's a problem. It looks like we're failing, but if you look at American history the way I suggest in the book, what you see is these moments, these intense bursts of change. When we realize the system we have isn't working and then we break it and then we make something new. As Martin Luther King said in his last speech, "It's only when it's darkest that you can see the stars."

He ended that last speech, the last line of the last speech that Martin Luther King ever gave was the first line of the Battle Hymn of the Republic. My eyes have seen the glory of the coming of the Lord.

Brian Lehrer: You want to get a take on the Battle Hymn from a music teacher. Here's Steve on the lower east side on the upper, oh yes, lower east side. You're on WNYC Steve. Hi.

Steve: Hey, how's it going? Thanks so much for taking my call. Just wanted to say that the Battle Hymn was actually based on a song called John Brown's Body, which I think would be a really great national anthem because instead of making Christ the Savior makes an actual white person who didn't stand as a moderate, I'm not to saying we should be centering whites in general, but whatever. That John Brown is a real hero in terms of what Dr. King talked about with the white moderates being the real problem, we need to look up to people like him. Are we willing to make the ultimate sacrifice to really make this country a better place? That's the energy we need.

Brian Lehrer: Thank you. A quick thought on that Professor Roosevelt?

Kermit Roosevelt III: Yes, I like that suggestion. I think John Brown's a hero.

Brian Lehrer: Culturally speaking, last question. You want Americans to culturally give up on identifying so strongly with the founding. I guess with the 4th of July and identify more with the reconstruction era, maybe we center Juneteenth more, which comes from that as the real founding of this country. You choose that period roughly 1865 as that starting point, not 1619 as the New York Times project did the advent of slavery here, as important as that was. We have to reckon with 1619, and it's 400 years of offshoots to get to where you are. I think I hear you saying, and then what do we do with it? Let's say people start to pick up on what you are proposing.

Thinking more of the founding of America, as we know it, as we want to know it in 1865 or so, what do we do with that?

Kermit Roosevelt III: I think we understand ourselves as the heirs not of people who were writing on a blank slate and making a new world, but the heirs of people who like the pre-Civil war generation. Who were born into an imperfect world with injustice that was not their fault and confronted the question, what am I going to do about this? You can see the Lincoln Republicans try to work within the system. Eventually, it doesn't work. You get radical reconstruction, they break the constitution. That's the lesson that I think we need to take and that's what I want people to think about going forward.

Our world is unjust. It's not our fault. We didn't make it, but the question is, what are we going to do about it? The answer is, work with the system for as long as it keeps working but if it doesn't work, if you see the system has failed, then you have to make something new.

Brian Lehrer: Kermit Roosevelt III, University of Pennsylvania law professor, and now the author of The Nation That Never Was: Reconstructing America's Story. Thank you so much for this.

Kermit Roosevelt III: Thank you.

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