'Second Founding' Examines How Reconstruction Remade The Constitution Pulitzer Prize-winning historian Eric Foner talks how the 13th, 14th and 15th amendments relate to current debates about voting rights, mass incarceration and reparations for slavery.
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'Second Founding' Examines How Reconstruction Remade The Constitution

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'Second Founding' Examines How Reconstruction Remade The Constitution

'Second Founding' Examines How Reconstruction Remade The Constitution

'Second Founding' Examines How Reconstruction Remade The Constitution

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Pulitzer Prize-winning historian Eric Foner talks how the 13th, 14th and 15th amendments relate to current debates about voting rights, mass incarceration and reparations for slavery.

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. Some of today's most divisive issues related to racial equality, voting rights and voter suppression, women's rights, who gets to be a citizen, mass incarceration and what is the meaning of equal justice are issues you can't fully understand without understanding the 13th, 14th and 15th Amendments. These are the amendments that were added to the Constitution after the Civil War in the era known as Reconstruction.

The 13th ended slavery. The 14th made anyone born in the U.S. a citizen and said that the state can't deprive any person of life, liberty or property without due process of law or deny anyone equal protection under the law. The 15th gave the vote to black men but not any women.

How those amendments became part of the Constitution and how they've been interpreted over the years is the subject of a new book by my guest, Pulitzer Prize-winning historian Eric Foner. It's called "The Second Founding: How The Civil War And Reconstruction Remade The Constitution." Foner is the author of several books about the Civil War and Reconstruction and is the DeWitt Clinton Professor Emeritus of History at Columbia University.

Eric Foner, welcome back to FRESH AIR. Give us a sense of the rights that Americans won in the 13th, 14th or 15th Amendments, just to give us a sense of the importance of those amendments.

ERIC FONER: The 13th Amendment irrevocably abolished slavery in the United States everywhere. Unlike the Emancipation Proclamation, which had numerous exemptions, the 13th Amendment applies to everybody in the United States. Nobody can be held as a slave anymore. What rights come with that is an interesting question which was debated very seriously in the Reconstruction era after the Civil War. What does it mean to abolish slavery? What comes along with that? Yes, people can no longer be bought and sold, but are there other rights as a free American that you now have?

The 14th Amendment, the longest and most important amendment added to the Constitution since the Bill of Rights, basically - apart from a whole series of other kind of arcane points, like that the Confederate bonds that were issued will never be repaid, and the owners of slaves will never get monetary compensation for losing their property - but the key there is that it creates the principle of birthright citizenship. Anybody born in the United States is a citizen regardless of the status of your parents, their race, religion, national origin, et cetera, et cetera.

And moreover, all those citizens are to enjoy the equal protection of the laws. No state can deny the equal protection of the laws to any person actually, including aliens, not just citizens. And that completely transformed the Constitution into a vehicle that people could use when they were - felt they were denied equality. And then the 15th Amendment prohibited the states from denying anyone the right to vote because of race. In other words, it enfranchised African American men throughout the entire nation, which was a revolution, really, in the body politic of the United States.

GROSS: I don't think most people think of the rights that you just enumerated as having come out of the period of Reconstruction, the period after the Civil War. So in talking about the 13th, 14th and 15th Amendment, put that in the context of the era of Reconstruction. What's your interpretation of what Reconstruction means in American history?

FONER: Yeah. You know, Reconstruction was many things - reuniting the nation after the Civil War. But from this point of view, I think the key way to think about it is the effort of the country to come to terms with the destruction of slavery. What follows slavery? What is going to be the status of these 4 million African Americans who were liberated by the 13th Amendment and by the war itself? Are they going have the same rights as other Americans? Are they going to be citizens? Are they going to be second-class citizens?

The whole question of what is citizenship, who is a citizen and what rights come along with it - that was central to the political conflict in Reconstruction. And these amendments are the effort of the Republican Congress, and indeed of African Americans themselves, to put into the Constitution the basic idea of equality for all Americans. It's important to remember that ideal didn't exist before the Civil War. Remember, the Dred Scott decision, 1857, said no black person can be a citizen. Only white people can be citizens of the United States.

This was a country with strong belief in liberty but with a strong racial barrier excluding nonwhites from enjoyment of many of those liberties. And so Reconstruction is an effort to shatter those boundaries and to create a new - really, a new republic. I mean, that's why I call it the "Second Founding." It really transforms the Constitution, not just adding a few things here and there, you know, to try to implement this principle of equal rights for all Americans.

GROSS: And after the advances toward equality that the 13th to 15th Amendments provided, there was a backlash that came mostly from white Southerners trying to limit the rights that those amendments guaranteed.

FONER: Sadly, there was a powerful backlash. Even during Reconstruction, of course, we had the Ku Klux Klan and other such groups using violence to try to restore white supremacy in the South. And you know, these amendments remained in the Constitution. They were never repealed. They're still in there. But fundamentally, they were nullified in the generation after Reconstruction, that, little by little, the rights - the right to equal protection of the law, the right to vote, things like that - were just taken away in the South with the acquiescence of the Supreme Court of the United States.

So, you know, there's a lesson here also, which is the Constitution is not self-enforcing. And rights can be gained, but rights can be taken away also. And you know, some people feel we're in a situation today where some of these same things are happening, where there's a backlash against change, and rights that we had taken for granted are being whittled away or abrogated altogether.

GROSS: Let's look at the 13th Amendment, which abolished slavery. It reads, (reading) neither slavery nor involuntary servitude, except as a punishment for crimes whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. So that amendment freed the slaves. Why was that amendment needed after the Emancipation Proclamation?

FONER: Yeah. That - I mean, most people probably think that Lincoln freed the slaves in the Emancipation Proclamation. And of course, he did declare the freedom of over 3 million slaves. This was a remarkable, revolutionary act. Nonetheless, the Proclamation did not apply to the four border states that remained in the Union, which were the slave states Delaware, Kentucky, Maryland, Missouri, which had nearly three-quarters of a million slaves, because the Proclamation was a war measure against the Confederacy. And those states were in the Union. They were not part of the Confederacy, so they retained the constitutional protections of slavery.

And there were other exemptions also. So you needed something to make the end of slavery complete and national. But in addition, freeing individuals is not quite the same thing as abolishing slavery. Lincoln freed 3 million individuals, but the state laws that established slavery remained on the books. You had to repeal those laws or just override them with a constitutional amendment. And that's what the 13th Amendment does.

GROSS: Course, the 13th Amendment did - didn't do anything to help freed slaves who had nothing. They had no possessions, no means of income, often no education. They were faced with hostility by whites. So, I mean...

FONER: Well...

GROSS: ...It - yeah.

FONER: Yes. Yes, you're quite right about that except, you know, there was a second clause in the 13th Amendment which says, Congress shall have the power to enforce this amendment with appropriate legislation. Now, the 13th Amendment doesn't say what happens after slavery. But very quickly, Congress said, well, we now have the power to enforce the end of slavery. And that means more than just striking the chains off of people. Some people thought it meant, well, we can require the states to allow them to be educated. Under slavery, you know, it was illegal to educate a slave in the South. Or Thaddeus Stevens said, we can give them land. Unfortunately, that was never enacted. But that's - in other words, enabling people to be free requires further action.

And the second clause of the 13th Amendment seems to authorize Congress. And very quickly, they did that. In the Civil Rights Act of 1866, one of the most important laws of American history, based on the 13th Amendment, Congress said, OK, A, all - anybody born in the United States is a citizen and, B, regardless of race, all citizens are to enjoy these basic rights of free labor, the right to own property, the right to go to court, the right to sue and be sued.

That's part of the end of slavery, to enable black people to, you know, enjoy the pursuit of happiness in this country. So the 13th Amendment is - was intended to be more open-ended. And you know, it opened the door for the federal government to enforce the end of slavery by uplifting the former slaves.

GROSS: Paradoxically, the 13th Amendment, which ends slavery, is also understood today to be at the root of mass incarceration. Would you explain the connection?

FONER: Right. Yes. Many people have seen the well-known Hollywood documentary "13th," which draws a straight line from the 13th Amendment to mass incarceration today. That clause - you read it a few minutes ago, you know, that slavery and involuntary servitude are abolished except as a punishment for crime - you know, very few historians have written about that or paid any attention to it. And in fact, that clause was not even debated when the amendment was before Congress, and almost no one in the press even noticed it because that was almost boilerplate language at the time. It was very familiar. Most northern states had that kind of clause in their constitution.

It has nothing to do with mass incarceration. There were very few prisoners in 1865, very few prisons. But there was this - you know, some of them, North and South, did put prisoners to work in order to help pay the cost of prisons. But what happened unfortunately is that language which was not seriously considered enough opened the door to a massive system of convict labor, of prison labor in the South which applied almost entirely to African Americans - some whites, but mostly for blacks. And by the late 19th century, you had thousands of black prisoners being leased out to work on plantations, in mines, on railroads, other enterprises - all legal under the 13th Amendment according to the courts.

So - you know, so there is - that was a terrible loophole in the 13th Amendment. And the consequences were not intended, but they were dire. And even today, the courts have ruled that prisoners, of whom we have a lot more than we did back then, can be put to work without any of the legal protections that most people working enjoy - minimum wages, the right to form a union, anything like that. So it was - it's a very unfortunate long-term consequence of the amendment, which, on the other hand, was one of the great expansions of liberty in American history.

GROSS: And since there were so many laws enacted, particularly in the South, intended to limit the rights of black people, it was easy to violate those laws and be thrown into jail and then be forced into labor.

FONER: Right. I mean, the - those laws that were passed after Reconstruction to create this system were not racial laws. They didn't say anything - if they had said, hey, black people can be put in jail for this, and whites aren't, that would have violated the 14th Amendment to the Constitution, which comes right after the 13th, of course. No, it was the way these laws were implemented. First, they passed laws, you know, making just about anything a felony. You steal a chicken, and you're an - you're sentenced to 10 years in jail for a felony. And the way they were implemented was almost entirely against blacks. It wasn't in the law, but that was the whole legal system that was created once white supremacy was restored in the, you know, post-Reconstruction South.

GROSS: Well, let me reintroduce you here. If you're just joining us, my guest is historian Eric Foner. And his new book is called "The Second Founding: How The Civil War And Reconstruction Remade The Constitution." We'll be right back. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR. And if you're just joining us, my guest is Pulitzer Prize-winning historian Eric Foner. His latest book is called "The Second Founding: How The Civil War And Reconstruction Remade The Constitution."

Moving along with the three constitutional amendments that came out of Reconstruction, let's get to the 14th, which is very relevant today. It established who could be a citizen. And it brought the idea of birthright citizenship into effect. And since citizenship and immigration and who gets to be a citizen is so controversial today, let's talk about this. So how did the 14th bring the idea of birthright citizenship into effect?

FONER: Well, the Civil Rights Act of 1866 passed a few months before the 14th Amendment. It already established birthright citizenship. But of course, a law can be repealed by the next Congress. So the Republicans put this into the Constitution. It was actually only added at the very last minute when the Senate was debating the specific language after the House had passed the 14th Amendment. And they added this birthright citizenship just to, they thought, keep the question of citizenship settled for all time. It would no longer be debated - course, it is being debated - and then the House agreed with that.

But you know, before the Civil War, there was no clear definition of American citizenship. The Constitution mentions citizens - the original Constitution - in a number of places, but it doesn't exactly define who they are. The general opinion, I think, was if you're born in the United States, you're a citizen. The president must be a natural-born citizen, which seems to imply that birth in the country makes you a citizen. But on the other hand, the states could also decide who was a citizen and who wasn't and what rights citizens had, and they varied enormously from one state to another. And then there was the vexed question, is citizenship for white people only but - or for everybody? And before the Civil War, the general opinion was it was only for white people.

So birthright worked for whites but not for blacks. You could be born in the country as a free black person, and yet you were not considered a citizen in many states or by the federal government. So this - so the first sentence of the 14th Amendment clarifies and establishes who is a citizen, and it's anybody born in the United States or naturalized from abroad - immigrants. Although, even here, there's an ambiguity because it says you have to be subject to the jurisdiction of the United States, and that meant Native Americans, basically. They were still considered citizens of their own tribal nations - the Cherokee Nation, you know, the Seminole Nation - not of the United States. So they're excluded from birthright, but everybody else born in the United States is.

Now, of course, as you said, this is controversial today because - what is the status of a child born in the United States whose mother is an undocumented immigrant? President Trump recent - has said a number of times that he feels he has the power to sort of abrogate the first sentence of the 14th Amendment as far as those children are concerned. Legally speaking, I think he's got no case whatsoever because the language is very clear. Any person born in the United States - it doesn't matter what the status of your parents are. Your parents can be bank robbers, but that doesn't - that crime doesn't go down to the child. That child born in the United States is still a citizen. But it's controversial. A lot of people do not like the idea that children born to immigrants of one kind or another are automatically citizens of the United States.

GROSS: As you said, President Trump has said he would issue an executive order to overturn the birthright citizenship clause of the 14th Amendment. Can you imagine if presidents had the power to issue executive orders overturning parts of the Constitution?

FONER: Yeah. That would be kind of shocking. Which clause would be next, you know? I mean, there's plenty of parts of the Constitution that President Trump doesn't seem to agree with. And who knows? You know, it's in the Constitution. But as they say, the Constitution is what the Supreme Court says it is, and we have a Supreme Court now with at least a 5-4 majority of conservatives, Republicans. It's not totally inconceivable that they would uphold such an executive order, even though, from my point of view, this would be totally unconstitutional for the president to do it. You know...

GROSS: I'm going to stop you right there. You think the Supreme Court might actually uphold the president if he tried to revoke part of the Constitution?

FONER: (Laughter). With this current Supreme Court, I'm not willing to make predictions about what they will and won't do. I mean, not that long ago, the Supreme Court overturned, basically, the Voting Rights Act of 1965, which was passed virtually unanimously by Congress to enforce the 15th Amendment. Nobody, I think, thought that they were going to do that, but they did. So predicting the Supreme Court is not a very - is a difficult thing to do.

GROSS: So let's get back to the 14th Amendment. By establishing birthright citizenship, it remade the political map. Can you explain how?

FONER: Well, it remade the entire, you know, legal political map by incorporating African Americans. Basically, those are the ones whose citizenship is now established, which previously had been denied. But what it follows is that no state can deny to citizens the privileges or immunities of citizens. And again, the question is, well, what comes with being a citizen? Is citizenship just, like, an honorary title - like, you're a member of Phi Beta Kappa now? But nothing really comes with that except you get a little key. Or does citizenship have substantive rights?

One of the things that's very important to me - and I argue in my book - is you've got to look beyond Congress, beyond the courts, to understand the debate that was going on in this society all up and down American life in the Reconstruction period. African Americans had their own ideas. They thought that with citizenship came very expansive rights. The right to vote, they thought, came with citizenship. The right to equal treatment before the law, the right to, you know, public treatment - what they called public rights - that they no longer could be excluded from hotels and restaurants and transportation facilities and things like that - all those came with being a citizen of the United States, they said.

But of course, a lot of white people thought that citizenship came - was much more narrow, and later, the Supreme Court would basically say, I'm sorry. You're a citizen, but you basically don't have any rights. Or more to the point, your rights still come from the states, not the federal government, and the federal government does not have the power to enforce any of these privileges or immunities that black people think they are now entitled to.

GROSS: My guest is historian Eric Foner. His new book is called "The Second Founding: How The Civil War And Reconstruction Remade The Constitution." We'll talk more after a break, and we'll remember journalist Cokie Roberts, who I'm so sad to say died today of complications related to breast cancer. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Pulitzer Prize-winning historian Eric Foner, author of the new book "The Second Founding: How The Civil War And Reconstruction Remade The Constitution." It focuses on the 13th, 14th and 15th Amendments, which were added to the Constitution after the Civil War, and how they relate to some of today's most divisive issues.

When we left off, we were talking about the 14th Amendment, which made anyone born in the U.S. a citizen and said that the state can't deprive any person of life, liberty or property without due process of law or deny anyone equal protection under the law.

So did the 14th Amendment, establishing who could be a citizen and establishing that black people were citizens if they were born in the U.S., did that imply that they had the right to vote?

FONER: Well, black people thought that it did. But in fact, the second clause of the 14th Amendment, which is very convoluted and hard to understand - but in a nutshell, it says, no, the states still control who votes. But if any state denies any group of men of the right to vote, they're going to lose part of their representation in Congress. So let's say Mississippi, which is about half-black and half-white, if they don't let black men vote, they lose half their congressmen. It's supposed to be automatic, although it was never enforced in our history.

Now, the women's movement objected bitterly because this introduces the word male into the Constitution for the first time. The Bill of Rights in the original Constitution didn't say only men have these rights. It was everybody. But now if men are deprived of the right to vote, a state will lose political power. If women are denied the right to vote, it makes no difference. There's no penalty. And of course, every state at that time denied women the right to vote.

GROSS: Which leads us to the 15th Amendment, which gives black men the right to vote.

FONER: Right.

GROSS: But it's a very kind of narrow - it's wonderful for black men, but talk about who's left out of the 15th Amendment.

FONER: The 15th Amendment, which did tremendously expand political democracy in this country by denying states the right to bar people from voting because of race, still is limited in many ways. It's a negative amendment. It says you cannot deny black men the right to vote, basically. But it allows for all sorts of other limits on the right to vote. Most controversially, of course, women are not included at all. States can still deny the right to vote on the basis of sex - not race but sex. So the women's movement was very adamant that now was the opportunity to have a broad statement that all adult citizens have the right to vote - black men, all women, etc. That's not what's in there.

But in fact, there are other loopholes. What about a literacy test? What about a poll tax? What about an understanding clause, where the voter is required to understand some portion of the state constitution? None of those seemed to be barred by the 15th Amendment as long as they're not racially, you know, described.

And later on, when the Southern states do take the right to vote away from black men, they don't do it by laws saying - hey, black men can no longer vote. That would have violated the 15th Amendment. What they do is how they implement the laws, particularly this understanding clause. The local registrar will - you want to come up and vote? Well, explain Section 14, Clause 3 of the Constitution of Mississippi. You can't do that? Sorry; you're not allowed to vote. But somehow, it was only blacks who couldn't understand the state constitution. So the way that it's implemented is to eliminate the black vote, but the law itself does not say anything about race in order to get around the 15th Amendment.

GROSS: So in the same period when the 13th through 15th Amendment is giving people new rights - it's giving black men the right to vote; it's making people who are born in the U.S. citizens; it ends slavery. So at the same time, we get the Ku Klux Klan. What was the government's reaction to the Klan? Did the government try to protect the rights of the people who the Klan was trying to, you know, violently push back?

FONER: Yes. State governments found it very difficult. These new interracial state governments in the South were weak. They found it difficult to suppress violence. The Klan and other groups - we shouldn't think of the Klan as like a national institution; it was a whole bunch of local groups. But they all had the aim of restoring white supremacy and overthrowing Reconstruction using violent terrorism. Eventually, the federal government stepped in. President Grant, using those laws, sent troops into South Carolina, sent federal marshals into Alabama. The Army acted in North Carolina. And they did crush the Klan in 1871, early 1872.

But then violence kind of rears its head again in the mid-1870s. And by this point, Northern public opinion is changing. You know, this is a period of the - of economic depression now in the 1870s. People are less interested in what's going on in the South, and President Grant feels that there is no longer public sentiment supporting military intervention in the South. And so by 1877, you know, all the Reconstruction governments have been overthrown or superseded, and white supremacist Democrats are back in control of the whole South.

But what's - in the long-term, what's also very significant about this is that, again, the Supreme Court whittles away at the power of the federal government to enforce these rights because the question arises - does the 14th Amendment protect your rights only against what they call state actions - laws, actions by state officials? But the - you know, the Klan has not state action. These are private individuals committing private acts of violence to deprive people of their constitutional rights. Is that barred? The 14th Amendment says no state can deny you the equal protection of the law or the due process of law. Well, this isn't the state exactly.

So the Supreme Court, little by little, said, no, forget it; this has nothing to do with private violence. You know, if you commit a murder, the state should deal with that. But the federal government has no power to intervene to protect you against private acts of terrorism. So it may - you know, what kind of constitutional right is it that can be nullified by somebody with a gun, you know, who assaults you or tries to kill you?

And this was a serious setback for the efforts to have the federal government actually take responsibility for enforcing the constitutional rights that black people had been given in the 13th, 14th, and 15th Amendments - the so-called state action clause. And that is still part of our law today. Not that long ago, the Supreme Court overturned part of what they called the Violence Against Women Act, and the court said - I think it was Justice Rehnquist at that time - look. You know, the government cannot act against private violence. If there's violence against women, the federal government can't do anything about it. And again, so you see how these Reconstruction decisions from the late 19th century are still part of our jurisprudence today with, I think, very deleterious consequences.

GROSS: Let me reintroduce you here. If you're just joining us, my guest is historian Eric Foner. His new book is called "The Second Founding: How The Civil War And Reconstruction Remade The Constitution." We're going to take a short break here. Then we'll be right back. This is FRESH AIR.

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GROSS: This is FRESH AIR, and if you're just joining us, my guest is Pulitzer Prize-winning historian Eric Foner, author of the new book "The Second Founding: How The Civil War And Reconstruction Remade The Constitution." One of the biggest setbacks to the Reconstruction Amendments to the Constitution was Plessy v. Ferguson. What year was that?

FONER: 1896.

GROSS: Yeah, and I want you to - it's a very famous case. Nevertheless, I want you to describe the case and the way it limited the protections of the 14th Amendment.

FONER: Plessy v. Ferguson is probably the best-known of all the Supreme Court cases of the late 19th century dealing with these issues of the constitutional amendments, mostly because it was overturned by the Warren Court in Brown v. Board of Education. But Plessy has to do with a state law requiring railroad companies to provide a separate car in their railroad trains for where black people will be put. A group of, you know, African Americans in New Orleans calling themselves the Citizens' Committee - which is interesting - they saw this as an affront to their citizenship. Citizens have a right to equal treatment in the public sphere, they said. To force people in a demeaning manner into a separate segregated car is a violation of the rights of citizenship.

But they arranged to have a very light-skinned man - Homer Plessy was almost white. He looked white. But they arranged to have him test - he went into - he bought a ticket. He went into the white car. By pre-arrangement, the conductor told him to leave. He refused to leave. He's evicted from the train, and what was the point? The point was to show how absurd the whole question of legislating race is, you know? And why leave it to a train conductor to go around and look at passengers and decide what race they are?

The lower court said, no problem here. This is - after all, the blacks have to sit in the black car. Whites have to sit in the white car. There's no discrimination here. And it went up to the Supreme Court, and of course, the court in 1896 ruled that the separate but equal idea - as long as the facilities are equal - which, of course, they never really were - separation is not a form of prejudice. It's not a form of discrimination. It's not demeaning.

The one dissenter, of course, was John Marshall Harlan of Kentucky - great justice who was the only man on the court who had actually owned a slave before the Civil War. And he said, look. This is not just a question of rights. This is a question of slavery and freedom. These people have been freed by the government, by the Constitution, and they are entitled to equal treatment. What you're really doing here is reenacting some of the racial inequality that is fundamental to slavery.

So Plessy became the, you know, rallying cry for separate but equal, and it - as Harlan predicted in his dissent, it opened the door to all sorts of other laws that the Southern states would now pass requiring segregation in every phase of life from birth to death - cemeteries, you know, swimming pools, you name it - public buildings. And you know, this is central to the consolidation of what we call the Jim Crow system in the 20th century South.

GROSS: So Plessy was overturned later by Brown v. Board of Education, which said separate but equal isn't equal.

FONER: Right.

GROSS: And this is the decision...

FONER: Separate is by definition unequal.

GROSS: Right. And this is the decision that mandated that schools be desegregated.

FONER: Right.

GROSS: And that opens the door to a lot of people using the Equal Protection Clause to fight for their rights, especially, you know, like, women's rights and African American rights. But where do you see us headed now in terms of how the Equal Protection Clause is being used and what its limitations are?

FONER: Yeah. It's ironic, I think, that the Equal Protection Clause, the core of the 14th Amendment has been used to greatly expand the rights of all sorts of people. Remember, it's not - there's no mention of race in the first section of the 14th Amendment. It's about citizens and people, so it applies to everybody. Ruth Bader Ginsburg and Pauli Murray pioneered using the equal protection clause to - against discrimination on the basis of gender. You know, that wasn't necessarily what was on the mind of the people who wrote the 14th Amendment, but the language applies to everybody. The gay marriage decision is an Equal Protection decision.

Where are we today? The irony is, over the course of the last generation, the Supreme Court has narrowed the 14th Amendment in terms of its impact on blacks, whereas it expanded it in terms of its impact on others. So for example, affirmative action cases - the courts have become more and more kvetchy, to use a New York phrase, about affirmative action. They've never overturned it entirely, but certainly, there are members of the court who say, no. This is reverse discrimination against whites. They have prevented the use of the 14th Amendment for other race-conscious efforts to, you know, try to repair some of the inequalities in our society. So you have this balance between vast expansion on behalf of other Americans and the kind of very cramped view of the 14th Amendment nowadays, I think, in terms of African Americans.

GROSS: Eric Foner, thank you so much for talking with us.

FONER: A pleasure to talk to you always.

GROSS: Eric Foner is the author of the new book "The Second Founding: How The Civil War And Reconstruction Remade The Constitution." He's the DeWitt Clinton Professor Emeritus of History at Columbia University.

After we take a short break, we'll remember journalist Cokie Roberts, who died today. She has a special place in the history of NPR and in the history of women journalists. We'll listen back to an excerpt of my interview with her. This is FRESH AIR.

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