In This Episode
First things first, Melissa and Leah break down Sam Alito’s latest airing of grievances in the Wall Street Journal. Then, Kate joins them for a lesson in actual history from an actual historian. Kate Masur, author of Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction, joins the trio for a conversation about her Pulitzer Prize-nominated book.
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Leah Litman [AD]
Show Intro Mister Chief Justice may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Leah Litman Hello, everyone, and welcome back to Strict Scrutiny. So before we get into our regular summer episode that we have lined up, which we’re super excited about, there have been some developments that we wanted to talk about with one another and with you. And one of those developments is a kind of recurring one at this point, and that is that Samuel Alito, Justice Samuel Alito of the Supreme Court has once again taken to the opinion pages of the Wall Street Journal to share his feelings.
Melissa Murray To leak his feelings, as it might be said.
Leah Litman You know, I heard some people called him A-leak-O.
Melissa Murray I don’t know why. I don’t know why.
Leah Litman Very unclear why. I also vaguely recall some people suggesting that there was reason or perhaps now several reasons to think that maybe it was Justice Alito who had been feeding information about the Supreme Court’s internal deliberations to the opinion pages of the Journal, given that he seemed to have such a close relationship with them.
Melissa Murray I mean like, Leah, let’s just stop this right now. Everyone knows that not only can Supreme Court justices have friends, they can also have friends who are billionaires, who are mega-donors, who may have business before the court, and who may also be the editors of the opinion pages of the Wall Street Journal. People are allowed to have friends Leah like let’s not make friendship unconstitutional.
Leah Litman Wow, I just got owned.
Melissa Murray I think boom, lawyered.
Leah Litman Right. Which amendment is it that protects the constitutional right to friendship? Is that a penumbra or an emanation?
Melissa Murray It’s probably a nomination. It’s like the First Amendment, like association, obviously.
Leah Litman Obviously.
Melissa Murray And then also the Third Amendment, like having people stay in your megadonor house, like quartering obviously.
Leah Litman True. I think it’s also another part of the First Amendment. Like something, something share your grievances with the opinion pages.
Melissa Murray Yeah.
Leah Litman With the Wall Street Journal.
Melissa Murray Freedom of grievance. Freedom of grievance. Concern. Very little known. Little known clause. No one really writes about it. It’s like the Ninth Amendment. Totally forgotten.
Leah Litman Exactly. But maybe let’s talk a little bit about the latest dynamo on the opinion pages of the Journal.
Melissa Murray Who wrote this, Leah. Like lets just start.
Leah Litman That is a good place to start because.
Melissa Murray Let’s start there.
Leah Litman While the authors are, of course, listed at the beginning of the piece, certain details about them are not disclosed until later.
Melissa Murray Weird that the Journal doesn’t disclose this. It’s like transparency journalism. Weird, so weird.
Leah Litman Very strange. So the authors of this particular piece are actually not Justice Alito. They are David Rivkin and James Taranto. But these individuals apparently were given access to like hours of interviews with the justice and they are printing, you know, his thoughts in this opinion piece. So who are David Rivkin and James Taranto? So let’s start with David. David, it turns out, is a lawyer at a law firm and as a lawyer at a law firm, he just so happens to be one of the lawyers on a case that the Supreme Court is going to be hearing next term, a tax case, a constitutional tax case called MOORE.
Melissa Murray Wait, wait. Let me roll this back, Leah so I can understand because, you know, I have a summer cold and like the only thing worse than a summer cold is a leaky Supreme Court justice. So this guy, David, this is a lawyer at a law firm, and he is going to have a case before the court and he’s now writing opinion pieces in The Wall Street Journal about interviews that he’s had with Justice Alito before, whom he will appear in this constitutional tax case.
Leah Litman Accurate dot GIF.
Melissa Murray Seems weird.
Leah Litman As the most ethical justice on the Supreme Court. Obviously, Samuel Alito is telling us this is all definitely above board, particularly because in this interview Justice Alito is sharing with this lawyer who has business before the Supreme Court, thoughts about Oleg’s right, thoughts about his colleagues jurisprudence, as well as some of his own thoughts about some pending cases before the court next term just for funsies.
Melissa Murray It’s almost like it’s an advisory opinion, almost.
Leah Litman You know.
Melissa Murray Almost.
Leah Litman Almost.
Melissa Murray I mean, because he does talk about like the prospect of Congress passing ethics legislation for the Supreme Court, and he suggests that that would be affirmatively unconstitutional. I think his read of things requires you to not read the Constitution, but that’s a different story. But it seems like that’s an advisory opinion.
Leah Litman So why don’t we just.
Melissa Murray Let’s get into.
Leah Litman Share the justices thoughts in his own words. So sorry.
Melissa Murray I keep jumping and I’m sorry. I just keep like, it’s just so good. I keep jumping to it.
Leah Litman It’s tough. He has once again given us a lot to work with. So Justice Alito tells his interviewees and. Everyone reading this piece that he voluntarily follows disclosure statutes that apply to lower court judges and the other justices do well. Bonus points, everybody. Nothing to see here. They’ve all fixed it.
Melissa Murray The bar is in hell.
Leah Litman Right. Exactly.
Melissa Murray Everyone has already said that those rules are pretty lame, even for lower court judges and definitely lame for Supreme Court justices.
Leah Litman Also, they’re not rules. They don’t lie to them. There’s no enforcement mechanism. But lest we actually we the people, through our elected representatives in Congress, actually want to adopt some rules governing the ethics around the Supreme Court justice.
Melissa Murray Constitution doesn’t let us do that.
Leah Litman Right. Justice Alito says, quote, I know this is a controversial view, but I’m willing to say it. This is where you hear I want to see you. Be brave. Music just blaring. He continues, quote, No provision in the Constitution gives them that being Congress, the authority to regulate the Supreme Court. Lest you’re not convinced by this. He ends the sentence with period.
Melissa Murray Okay, so I’m going to go back to food courts. And I took Fred Court’s at Judith Resnick. She was like very comprehensive. So I feel safe in saying this. There were a whole bunch of provisions in the Constitution about Congress having the authority to create federal courts, to add seats to the Supreme Court, to provide funding for the Supreme Court, to set the salaries of Supreme Court justices. So it seems like this idea that Congress is like not a fucking thing to do with the court is a little misguided for someone who ostensibly is charged with interpreting the Constitution for a living.
Leah Litman You know, Melissa, you just recited some constitutional law and provisions in the Constitution. I can.
Melissa Murray Just off the top of my head, Just off the top of my DayQuil adult head.
Leah Litman Yeah. I can see and hear Justice Alito shaking his head and mouthing, not true.
Melissa Murray Not true.
Leah Litman Because. Well, the justice of course.
Melissa Murray Because I’m a black woman and like. So there’s that.
Leah Litman There is that and while Samuel Alito believes that Congress can’t actually regulate the Supreme Court, there actually is a clause in the Constitution that is literally known as the exceptions and regulations clause that actually says that the Supreme Court shall have appellate jurisdiction, with such exceptions and under such regulations as the Congress shall make. It was Congress who actually gave the Supreme Court its appellate jurisdiction over cases involving federal questions, also in cases affecting federal officials. I mean, these are just kind of basic principles of constitutional law. And I’m not even referencing the necessary and proper clause.
Melissa Murray Basic bitch principles.
Leah Litman Basic bitch principles. Obviously, Sam Alito has moved beyond them.
Melissa Murray So there’s that. So just like like having a very questionable command of constitutional doctrines, is the first problem. Moving along.
Leah Litman It’s a little dubious. So it’s difficult to capture all of this. I did want to survey some of Justice Alito’s thoughts about his colleagues because.
Melissa Murray This was a lot of tea. Like, I thought these were your friends. He’s basically like so Clarence Thomas is a wingnut.
Leah Litman He’s like Clarence Thomas doesn’t believe in stare decisis. Like what?
Melissa Murray I appreciate the sentiment. I’m not opposed to it. But I was surprised to hear it coming from this guy.
Leah Litman Yeah. So, you know, at a general level, the justice wants the American people to know that there are very serious differences in how the conservative justices approach cases, but not so much with the Democratic appointees. They’re basically they’re all saying.
Melissa Murray They’re all in line.
Leah Litman Maybe that’s because they have uteruses. I don’t know.
Melissa Murray But they’re basically one person.
Leah Litman Yeah, he cannot distinguish between them.
Melissa Murray Three women or one. I don’t know. It’s all a woman.
Leah Litman Right. Exactly. But as to, you know, his conservative colleagues, you already mentioned his characterization of Justice Thomas. He believes that Justice Gorsuch has an ornery streak. And he appearently.
Melissa Murray I mean again, not wrong, but it’s surprising, surprising to have him tell us.
Leah Litman Not wrong, but maybe wrong reasons for not the not wrong conclusion.
Melissa Murray Pot calling the kettle. Pot calling the kettle.
Leah Litman Exactly. Because he seems to think that Justice Gorsuch is ornery because he believes Native Americans are people. You know, the ornery streak has apparently shown itself in cases involving Indian law. And also ornery because he’s not a big homophobe, because he also says he’s shown this in cases involving discrimination, which I took to be a reference to Bostock. So that’s his survey of the land.
Melissa Murray I mean, again, like I live for this internecine warfare among the conservatives. I just didn’t think he would be the one to spill the tea about their various differences.
Leah Litman He can’t help himself.
Melissa Murray Boy can’t help it. Can’t help it.
Leah Litman So angry about his like not being greeted as the liberator, brilliant king that he imagines himself to be, that he keeps acting out.
Melissa Murray I think my favorite my favorite quote here is about the organized bar refusing.
Leah Litman Oh, yes.
Melissa Murray To leap to the defense of one Samuel Alito and his colleagues, like my dude. If the organized bar will not defend you, you might reflect upon why that is. Like, maybe what you were doing is utterly indefensible.
Leah Litman This is such a persistent theme among GOP political officials, particularly when it comes to the court where the theme is. The problem is the criticism of the court, not the things the court is doing to engender this criticism.
Melissa Murray I mean, he basically came out and said, like Clarence Thomas doesn’t give a fuck about start with the crisis. That’s a problem. That is a problem. That’s actually a problem.
Leah Litman Right.
Melissa Murray That might be a reason why people are like, I’m not down with this court.
Leah Litman Yeah. I mean, and so too were the statements that you were just describing, namely his purported explanation for why he is once again going on record with The Wall Street Journal, including lawyers who have business before the court next term, saying. And so at a certain point I said to myself, nobody else is going to do this, so I have to defend.
Melissa Murray I’ll do it myself.
Leah Litman I volunteer. I volunteer as tribute says Sam Alito.
Melissa Murray And he’s the Katniss Everdeen of the Supreme Court.
Leah Litman He is. That is how he views things. In general. You know, this op ed had really big canned energy to me. You know, I kept hearing Ryan Gosling singing “I’m just Ken anywhere else, I’d be a ten.” It had really that energy to it for me. In addition to the whole, I am above the law. What are you going to do about it bitches Vibes.
Melissa Murray He’s definitely a ken. The problem is this court has only three Barbies. That’s the problem. This is a court full of Kens.
Leah Litman That is the problem.
Melissa Murray A six to three Ken supermajority. Yeah.
Leah Litman Yeah. Equal justice under Ken. But you know what? I’ve had Kenough of this.
Melissa Murray Kenough, Kenough.
Leah Litman That’s. That’s my own view.
Melissa Murray I think that might be better than Kate’s Kav-currence.
Leah Litman Constantly trying here. Just because I did reference this when we were talking previously about this insane op ed, I did want to note the piece of this that seems to offer the justices thoughts about a case that the court is hearing next term, and that is the case about whether to overrule Chevron. The doctrine under which courts are supposed to give deference to administrative agencies and how they interpret statutes. So Justice Alito says, quote, I’m not in favor of overruling important decisions just by pretending they don’t exist, but refusing to say anything about them. Of course, this basically describes what the court has been doing with Chevron for the last few years.
Melissa Murray And what they did with the Lemon tests.
Leah Litman Yes. Exactly. And just because they insist on continuing to say I am not doing what in fact I am doing, or I am not saying what in fact I am saying. The Wall Street Journal says Justice Alito is careful not to state a position on Chevron. Like come the fuck off. Come on. They have no respect. No respect for people’s intelligence.
Melissa Murray Like this interview is literally Sam Alito playing in America’s face?
Leah Litman Oh, yes. Yeah.
Melissa Murray Like I can do what I want with impunity. So here’s my question, Leah. Like, how many more of these four character interviews and like tantrums is it going to take before Joe Biden and the Biden administration stop talking about, okay, it’s not a normal court. And just like you’re right, it’s not a normal court. Let’s do something about it.
Leah Litman You know, I think it’s going to take several more because I have not seen enough hustle in light of these interviews. You know, of course, you have Senator Brian Schatz of Hawaii and Representative Alexandria Ocasio-Cortez and Senator Sheldon White Board, White House being like, hey, you know what? It’s kind of bad for a sitting Supreme Court justice to give an interview with lawyers, with business before the court in which he says, I’m above. The law. You can’t do anything to me. And they’ve been on this beat for a while now.
Melissa Murray They have to make the Supreme Court part of the platform for 2024. I mean, it’s this is crazy.
Leah Litman It is the ethics and corruption and insanity of it all, I think is just part of the Normie campaign.
Melissa Murray I mean, we we’ve even talked about like we totally skipped over the reporting about Leonard Leo basically funding a Lizzie Grubman style PR campaign for Clarence Thomas.
Leah Litman Yes, exactly.
Melissa Murray Like, there’s just so much stuff we can’t even cover at all. No. And that was, like, literally so obvious. Like. Like, yeah, we knew that. Like, the we didn’t even bother to cover it.
Leah Litman Right. And we haven’t even mentioned that the second author listed on this Wall Street Journal opinion piece has written together with Leonard Leo. Like, this is all part of a network that is designed to insulate powerful people from criticism with a fuck ton of money, jargon and lack of transparency. And this is not how constitutional democracy is supposed to work, right? People in power are not above criticism. They are not above the rules. They are not above the law. And they’re not supposed to basically be giving us all a middle finger to our faces and saying, What are you going to do about it?
Melissa Murray I mean, totally hopped up on DayQuil, but what you say sounds right, but not what I learned in high school civics.
Leah Litman I have won over the DayQuil audience that is a first step.
Melissa Murray Have you have I mean, I’m just to this say like I sound like I’ve literally been smoking 150 cigarets like like I’m like but I felt like I needed to haul myself out of bed to talk about this because it was just so perturbing.
Leah Litman It’s just other worldly. And yet this is the world we live in.
Melissa Murray AJust like this is normal, the new normal like.
Leah Litman It is, but people haven’t internalized that. And by failing to do anything about it, this becomes normalized. And, you know, we were.
Melissa Murray Here’s here’s a separate question. Like, we’re not the Supreme Court. Be like we’re just a bunch of ladies with a podcast filing. What’s it going to take for folks who are on the Supreme Court be to just sort of know it’s not normal for a Supreme Court justice to be like in the pages of a major newspaper like this, like Supreme Court justices literally were in the papers three times, like when they got confirmed. Like they had some landmark decision and then when they die or stepped down.
Leah Litman Yeah, I don’t know. Of course, like there is the contingent of the Supreme Court, be it Elie Mystal. Dahlia Lithwick, Mark Justice, starring Ian Millhiser.
Melissa Murray I mean, the legacy media, you know what I’m talking about?
Leah Litman I don’t know. I truly don’t know because, you know, people have seen this, I think, in other political arenas where so much of journalism depends in part on access. And that reality creates an incentive to not be maybe super frank about what is happening, as does this kind of desire to both sides ism and act as if everything is neutral. There are arguments on both sides and everyone has a point so as not to have a perspective. But the problem is, is like you are declining to report reality when you are not describing how audit is for it. Again, a Supreme Court justice to be giving interviews with a lawyer before the court in the opinion pages of an obviously ideological journal that he has an apparent relationship with in which he is stating views about his colleagues jurisprudence, a case that is pending before the court next term and saying, I’m above the law.
Melissa Murray The Wall Street Journal The fact is The Wall Street Journal, I think maybe in our society as people as to how abnormal it is, like, yeah, but imagine if like he had gone on a and or Newsmax and given this interview we’d all be like, okay, that is obviously crazy. But like, that’s only like The Wall Street Journal is like only a few steps away. Like this is just not normal to give this much time to an outlet, like about your views of your colleagues, the work that you’re engaged in. Like usually they just put their heads down and work like, I mean, so, you know, the thing for me that’s so clear here is that this interview signals that this court is moved into like a completely non normal phase. This is not normal business as usual, and we shouldn’t regard it as business as usual.
Leah Litman No. Even when they occasionally issue normal decisions as they sometimes did this past term. Right. Not a normal institution.
Melissa Murray Debatable debatable.
Leah Litman Working in normal ways. I said normal ish. I think. So.
Melissa Murray Normal -esque.
Leah Litman Right. Give myself some wiggle room there. But yeah, this is kind of where we are.
Melissa Murray Well, that’s depressing. Speaking of which, in addition to being a regular on the journalism interview, be, Justice Alito, as you know, is also an historian. Someone who favors a history and tradition approach to the Constitution. And so we were like, you know what? Let’s take him seriously. What would it look like if he was actually an historian, if he was actually to do real history, methodologically sound history? And so we decided maybe we should interview a real historian who does.
Leah Litman An award winning
Melissa Murray An actual historian. And so, listeners, what’s up next is an interview with an actual award winning historian who does methodologically sound legal history and has done a really amazing in-depth treatment of the period before the Civil War in which the states and the federal government were engaged in this back and forth over the question of freedom and enslavement and what it meant to make African Americans part of your society. So please stay tuned for what’s next. A really fantastic interview with Kate Masur.
Leah Litman This one goes out to you, Sam Alito and Ron DeSantis.
Melissa Murray Slavery, the hot new internship where you can learn all kinds of skills, blacksmithing, tailoring all the things you’ll need. It wasn’t so bad after all. Black people. Can I get an amen?
Leah Litman What’s the E.T.A. on when something like that appears in an Alito opinion?
Melissa Murray I’m like, I’m. I’m not even going to bet because it’s going to be in there. But I be like, I actually have to say, like, I went to school in Florida in the 1990s and we really did not talk about black history in any detail. We did cover the Civil War, but not a lot of black history. But in 1994, Florida passed a law that made discussing black history a requirement. And like so I think what’s hilarious is this is their response to that.
Leah Litman Yes.
Melissa Murray Anyway, stay tuned.
Leah Litman [AD]
Melissa Murray We are so excited about today’s entry from the strict scrutiny summer reading list. We know that our favorite justices are really big fans of history and we wanted to dig in to some really good historical reads in honor of our friends at the court. And so we have a great read for you today. We’re so accustomed to thinking about the fight for racial justice as beginning with the Civil War and the abolition of slavery and reaching this really important peak with the civil rights movement of the 1960s and obviously what we’ve seen even to this day. But here’s a question What if there is actually more to the story? What if there’s a whole history of civil rights agitation that has been obscured by our conventional narratives? What if the Supreme Court doesn’t have any historians who are able to actually plumb these other histories to surface them in their opinions? That’s where we come in.
Kate Shaw So what Melissa just outlined is essentially the premise of our current strict scrutiny. Summer read until Justice Be Done. America’s First Civil Rights Movement by Kate Masur, a professor of history and the Board of Visitors, professor at Northwestern University. In this Pulitzer nominated book, Masur traces an underexplored period in the fight for black civil rights. That is the period following the American Revolution and leading up to the American Civil War. Kate we are so delighted to have you on the podcast to discuss this important work. Welcome to Strict Scrutiny.
Kate Masur Thanks so much. It’s really great to be here.
Leah Litman So just to make sure that I have this right. According to the conventional wisdom following the founding, Americans grappled with westward expansion and the issue of whether slavery should also move westward. But as you show in the book, this conventional wisdom is incomplete. In fact, during this same time period in the existing free states and in those Western territories that would join the nation as free states like Ohio and Illinois. There was an ongoing debate about whether and how to vindicate the civil rights of free blacks in these jurisdictions. So is that kind of the impetus for the book?
Kate Masur So the impetus for the book in some ways started with the end of the story in the book, which is reconstruction. I wanted to better understand how the Republican Party of the Civil War period actually came into office and started passing measures that not only abolished slavery, but also tackled and took down laws that discriminated against and subordinated black Americans. And I kind of ended up getting led back further and further in time and into the states and into state and local government, because that’s where the answers turned out to be. And so, yes, to your question, though, we’re more accustomed to thinking about the question of slavery. Slavery, good or bad, right or wrong. So we get rid of it. And questions associated with Western expansion for the pre-Civil War period. And less accustomed to even recognizing that there was a big debate about the status and rights of free African-Americans, particularly in the free states in that period.
Melissa Murray So let me just get this straight. You as an historian, did original historical research, and it didn’t lead you to a preordained outcome. It actually led you to find something new and unexplored that you then turned into a book as opposed to a predetermined outcome that you were literally searching for evidence for.
Kate Masur That is really true. And there were a lot of unexpected.
Melissa Murray Like a historian!
Kate Masur Yeah. I mean, you know, sometimes when you go into archives and you start looking at sources, especially sources that either historians haven’t looked at before or else they might have looked at, but for different asking different questions, you find things that surprise you and you actually have to sort of rethink like the premises that you came up with. And I have some sometimes people have asked me, you know, what what surprised you in this research? But I really did. There’s a lot large chunks of the book that I did not think we’re going to be part of the story until I started doing research.
Melissa Murray You’ve elaborated that you slavery was not the whole story. And in fact, the whole question of slavery was actually preceded by a broader question about the westward expansion and the Northwest Territory so can you give us an example or sort of help elaborate that conflict? Again, many people just focus on the Civil War and the conflict around slavery, but this entire preceding period and the struggle over how to think about the Northwest Territory seems to be really important and maybe less explored here.
Kate Masur Yeah, I would point to kind of two different threads of the story. One has to do with what’s going to happen in the Northwest Territory, which is this huge swath of land, what are now the states of Michigan, Ohio, Indiana, Illinois and Wisconsin. So we can talk about that. And then the other thing to think about, and I think this was a key thing for me to a way a way for me to understand what I was doing and what was going on is thinking about the free states or what we might call the North as a post-slavery society. So really, what’s happening in the period from the. Evolution to the Civil War is that free states, including the states that were carved out of the Northwest Territory, those Midwestern states are grappling with questions associated with the abolition of race based slavery in a way that then the whole nation was going to have to come to grips with after the Civil War. So in a way, it’s kind of like, you know, processes that we are familiar with about reconstruction are already going on in these free territories before the war. And actually some of the same people who were involved in those debates and discussions and struggles in the period from like the 1820s to the 1850s are the same people. They’re still alive right when the Civil War starts and they have different opportunities to put their ideas into practice in politics when that happens. So we can go into more depth on the Northwest Territory in particular or but just thinking about those reconstruction related questions being translated backward in time to the free states before the war, I think is a key move to think about.
Melissa Murray So those Northwest states sort of functioned as kind of laboratories for basically what would later happen in reconstruction. And as you note, they’re struggling with this question of what to do about free black people. And they’re thinking about this literally 50 years before reconstruction makes it a nationwide question.
Kate Masur Right. And absolutely. So one of the characteristics of the Northwest Ordinance from 1787 was it said that there could be no slavery in that huge swath of territory north of the Ohio River. Slavery already existed in some areas in that place. So, you know, the Northwest ordinance didn’t somehow like abracadabra, just abolish slavery. And some people thought to continue the practice of slavery in some of those places. But the Northwest Ordinance really set that territory on the road to being kind of free territory. But there was still a question, okay, if you weren’t going to have slavery, what would be the status of free African-Americans and for that matter, also of Native Americans? Although I don’t talk about that so much in my book. But so you have a society that, you know, where white people are kind of predisposed to be rather racist, to have certain kinds of ideas about racial hierarchies in their head. You have a whole history, you know, before that of African slavery, of Native American dispossession. And so it’s society that’s going to be thinking about how what happens when these ideas about race and racial inequality meet up with ideas about freedom or the idea that everyone should be free. So what happens in Ohio, which is the first state to become a state carved out of the Northwest Territory, is the state legislature from the beginning of statehood passes these laws that discriminate against free black people. Right. So they’re going to have is that they’re going to try to have a society in which there is no slavery, but there is going to be, you know, kind of second class citizenship or two tiers, not even citizenship for black Americans. And that’s a really interesting dynamic, right, Because we don’t really based on our kind of post-Civil War perspective, we think, well, it’s either you have slavery or you have a society that strives for some version of racial equality. But the example of Ohio or Illinois before the Civil War is like, no, you have Americans who are really thinking along the lines of something like racial apartheid. You know, like, well, we’re going to not have slavery, but we are going to have this, you know, kind of institutionalized racial disparities that they see at that time as desirable.
Leah Litman Well, and somewhat infamously or famously, you know, Dred Scott versus Sanford, you know, in the first part of the court’s holding when the court held that black Americans could not be Americans and could not be citizens, the court relied on the treatment of free blacks in ostensibly free states where they were treated as second class citizens under a regime of racial apartheid. To underscore and bolster the court’s conclusion that black Americans couldn’t be Americans. And it sounds like, you know, that was one kind of response to the debates that were happening in the free states and then the, you know, reconstruction. Congress kind of took a different tack, which is to say, like it saw these regimes of racial apartheid as related to outgrowths of the regime of slavery and, you know, sought to kind of like root that out, root and branch.
Kate Masur They did. But the part that’s historically contingent, I would argue, is what if the reconstruction Republican led reconstruction, Congress had said, oh, let’s set up a nation that looks more like antebellum Illinois. Right. So part of the question that the book is asking is why didn’t it go that way? Why wasn’t that the vision of the Republicans in Congress at that time? And I’m partly trying to explain why.
Kate Shaw Yeah, There’s just like so much incredibly rich history that at least to me was like very, very new. This sort of proto apartheid Jim Crow sort of arrangement in ostensibly free states. Right. There’s this idea, I think, kind of woven throughout the early chapters, which is that like freedom and equality do not necessarily coexist, even have formal freedom for black people in these states and nothing approaching even legal equality. And so, you know, you alluded to the black codes passed in Ohio. And just to sort of put some specific. They were talking about things like formal requirements that free black people register when entering Ohio. Right. That they prove their free status, that they posted bonds. And in addition to the kind of formal legal disabilities imposed by Ohio’s black laws. You have in Ohio and other free states the kind of ever present specter of the slave catcher. Right. Who can come and poses a threat to all black people. Right. Including those who are not and maybe never even were enslaved. But it is just such a more precarious existence in even ostensibly free states than I think our conventional narrative, the way that was alluded to at the outset, really has recognized until this book.
Kate Masur Sometimes when I’m talking about the book and I’ve had some really great conversations about it with teachers like with high school teachers and stuff like that, they say that this kind of story is not at all in their curriculum and that the kind of idea.
Melissa Murray Are they in Florida?
Kate Masur Not just in Florida.
Melissa Murray Okay.
Leah Litman How about Texas?
Kate Masur Umm no. You know, like the persistence of the idea that I don’t think I was fully aware of this when I was writing the book, but the persistence of the idea that, you know, slavery and race were a Southern problem, not a northern problem and a kind of idea of racial innocence of the North. I mean, I think I was also coming from a different perspective when I was writing this book, which is that there’s a lot of historical work that actually characterizes the White North, particularly the Midwest, as an absurdly racist, like a sort of 100% racist. So part of what I was responding to and this is if that was the case, where did you get these white Republicans who actually stood up for a lot of versions of racial equality? So there are these sort of polar opposites, I think, in commonplace perceptions of white people or, you know, particularly white Midwesterners, where one set of perceptions is this idea of racial in a sense. And like we don’t have problems of race up here. And the other is more maybe among historians, this idea that, well, actually all the Republicans were really racists. They might have wanted to get rid of slavery, but they really didn’t care about anything beyond that. And I don’t think that’s quite accurate. And that’s part of what I’m talking about in the book. But yeah, back to I mean, the precarity of life for a lot of free African-Americans. I mean, one of the things that I found in the book and that I would like to keep exploring is just the ways that even within a state, which is a big swath of territory, it was sort of patchwork, you know, so people could put down roots on land, maybe form a black community that had its own school and church in some part of Ohio, while in other parts, you know, that, oh, well, black people aren’t really wanted here. White people are going to sort of drive them out. And then part of the problem that African-Americans often faced, particularly in these huge swaths of rural land and rural settlement, says and urban ones, for that matter, is, you know, on the turn of a dime, white people could decide that they were upset about something. It could be a personal disagreement, it could be a sense of economic grievance and sort of turn against the local black community. And in that case, the black laws really came into play because African-Americans had a hard time making recourse to the courts because one of the main features of the black laws was laws that said black people cannot testify in court cases involving whites.
Melissa Murray I think students are always surprised when we read the Constitution and corn Law to find all of these little snippets promoting or bolstering or preserving slavery in the actual text of the original Constitution. But your book also notes that it is the structure of the Constitution itself that actually not only preserves slavery, but gives rise to the system of localized apartheid that you’ve identified. And, you know, the Constitution is set up for limited government, a very limited federal government. And that puts a lot of the onus for individual rights on state and local governments. And as you say, they use this power in really interesting ways, like the police power gets marshaled to create these legal hierarchies that essentially create and preserve apartheid.
Kate Masur Yeah. I mean, one of the things I really wanted to do in the book is put these ideas about police powers, which were not just ideas, they were the ways that power often worked and the justifications for power into the picture. Right. And I think that often our discussions of American history are slanted so much toward rights and individual rights. And the idea that, you know, sometimes people say, well, the more rights, the better, the more you can kind of assert rights and protect and protected, the better. But yet there’s this huge countervailing force, which a lot of legal historians have talked about, which is the idea of the collective good, the idea of police powers of the state, which can be used to do things like protect public health or, you know, make sure that there’s not a slaughterhouse in the middle of downtown. And while at the same time those same powers aren’t used in the name of public health or the public peace can really also be used to abridge the rights of minorities, to push out people. Who our community deems unwanted or unhealthy or unsafe for the community. And so that whole conjunction of ideas about how people invoke the public good and the public welfare. And in this case, often for oppressive purposes, were really important to to me and to to the book.
Leah Litman Another twist on this idea of how the structural constitution related to issues of race is how you explain in the book, you know, when free blacks took steps to secure their civil rights in free states, they sometimes did so under the mantle of states rights, which is perhaps striking, you know, to people, given the way that that term would be used later to oppose efforts to address racial discrimination. So could you say a little bit more about the malleability of the idea or phrase states rights and how it was used to both protect and curb black civil rights?
Kate Masur Yeah, I mean, as Melissa was saying, this this very federalized kind of system in which so much power, particularly over the lives of individual people and their status was rested at the state and local level in a place like, let’s say, Ohio, where there was a pretty strong anti-slavery movement and a pretty strong movement to repeal the black laws. And a growing idea, I think, among Ohioans of of many different political stripes, that they weren’t a slave state. Right. There’s there’s an episode I describe in the book where a delegation of Kentuckians comes up to Ohio to lobby the state legislature in Ohio to say, you know, we want you to have a stronger, stronger protections for us, for white slave owners coming into Ohio to recoup fugitive slaves. And they’re pressuring the Ohio legislature. And the Ohio legislature at that point is dominated by Democrats. And they say, okay, and they pass these newly restrictive laws, whereupon the anti-slavery people and the anti-black lobby people come out and they say, you know, our state is now trucking to the wishes of the slave owners of Kentucky. And those slave owners are abridging our rights as Ohioans. And we have a right to be a free state. And we shouldn’t have to do the kinds of stuff that they do down in Kentucky. And so that’s an example of this kind of percolating idea of state sovereignty that could go in a lot of different directions, that people could mobilize that idea to say, we’re a free state, we don’t do it like they do, or we’re not going to treat black people under the prima fascia principle, right? That we presume that they that any person who’s African-American, who’s walking around freely, the presumption that they’re a slave, as opposed to the presumption that they’re a free person. In a way, the discourse of state’s rights can sometimes be sort of neutral and in these kind of terms, right? Some it depends on what the state or what what it’s being evoked to do. And another great example of that, that, you know, historians always like to talk about is the Fugitive Slave Act itself. Right. There’s nothing that gives the lie to the idea that there’s a southern states rights principle. Then the fact that the slaveholding class wanted a stronger Fugitive Slave Act that would strengthen the federal government and strengthen federal power to enforce slavery against the wishes of local authorities in the north. More than that. So people use these arguments opportunistically. And that is I mean, we can go into more on that. I’m still I don’t think it’s 100% kind of opportunistic because I think some very important things happen with reconstruction about kind of federal power and the nationalizing of certain kinds of rights ideas. But still, there’s a lot of room for for opportunistic use of this idea of state authority and state sovereignty, kind of like today.
Leah Litman And we’re seeing echoes. Exactly. I was just about to say we’re seeing echoes of this today in the fallout from Dobbs, where you see some states resisting other states restrictions on abortion or certain litigation restricting access to abortion on the ground, that now we as a state have decided that abortion should remain legal, including medication, abortion, or in efforts by some states to criminalize travel, you know, outside of the state in order to obtain abortion care or to criminalize doctors and other states from providing abortion care to residents of their own state, kind of like fugitive uterus acts or, you know, like modern day analog.
Kate Masur Exactly. So we can talk about how in some ways, the era of the 14th Amendment and particularly the era of Roe v Wade, was a period in which that was supposed to not be the case. Right. In the case of in the instance of abortion, that there was supposed to be a sort of federal baseline and that the 14th Amendment ratified in 1868 is what supposedly made that happen. And so now when it comes to abortion, we’re sort of more in a world that resembles the world that I’m writing about before the Civil War, Right. This world of significantly more federalism.
Kate Shaw Yeah, a pre 14th Amendment sort of moment. I think that’s right. To go back for a minute, though, to the kind of question of when we’re at the state level still, you know, in the sort of decades before the Civil War and Reconstruction, I don’t recall of the Kentucky episode you were just talking about is an example of this. But definitely in the book, a lot of the agitation for civil rights in, you know, state. Legislatures. Actually occurs through a system of petitioning legislatures, including by African-Americans who are formally not able to vote, but actually can participate in the petition process. So can you talk a little bit about kind of why the petition process was so meaningful and how it either assisted or limited efforts to secure black freedom and equality? And here I should just quickly plug the work of Melissa’s colleague, Maggie Blackhawk, who’s written some wonderful works about petitioning one called Petitioning and the Making of the administrative state in the Yale Law Journal, and one called another article called Lobbying and the Petitions Clause, I think, in the Stanford Law Review.
Kate Masur Yeah, Thank you for that. And Maggie Blackhawk’s work actually was a significant influence on how I thought about petitioning, because one of the things that she did was kind of lay out the history of why legislatures and other bodies that receive petitions felt obligated to do something about them. So to kind of backtrack for a second, I mean, the tradition of petitioning that is the idea that anyone can petition. So you don’t have to be a voter to be able to petition. You don’t have to be a man. You don’t have to be white. The idea and it goes it’s not even a coming out of republics or democracies. It goes back to monarchies. And the idea that anyone can kind of be a supplicant before the ruler and say, like, I need this, you know, please help me. And so coming into the early United States, the idea that, you know, was kind of received wisdom was anyone can petition a legislative body. And that as Maggie Maggie Blackhawk’s work has shown, there’s a tradition that the body is supposed to respond in some way. So the way it would traditionally work in a legislature is the legislature would receive the petition and they would decide to send it to a subcommittee. The subcommittee would respond in some way to the petition. Sometimes, you know, in sometimes in very minimal ways, sometimes in more maximal ways with like a report, sometimes the report would be positive. Yes, we should do what the petitioners want. Sometimes it would be negative and it would come back to the legislative body. So there’s this whole process that’s associated with petitioning that in the best case, you know, in history, in the best case, legislatures really did do these things, even if the petitioners were very modest people, even if they were, you know, just Joe Schmo, who wants, you know, a new bridge over some river in his town. One of my questions in the book was how did people try to make change when they were in a really small minority and in places where the people who were who cared most about the issue actually were disenfranchized also. So black men were not even permitted to vote in these states, in the Midwestern states. And African-Americans were about 1% of the population of Ohio. So they needed to recruit white allies and also find ways of getting their message out and trying to change politics, apart from voting and petitioning for these folks, was, you know, it was really interesting to kind of watch it unfolds insofar as I could in the archives. So you can see that the state legislature is receiving petitions. The petitions are no longer extant in Ohio, although they are in Massachusetts. But so it would say something like 37 Negro would they would say like Negro men or colored men from some town wrote a petition for repeal the black laws and, you know, sort of the number of people who they were, what they were asking for is recorded in the minutes of the state legislature. And then sometimes you would have these reports coming back and those reports were made public. So very often in these Midwestern states, the legislative committee would come back and say, we’re not repealing the black laws and here’s why. So the answer is negative. They’re not getting the petitioners are not getting what they want. On the other hand, then you would see the antislavery media. These newspapers would pick up the reports, publish them with snarky commentary. Right. They would say like, look, look at the Ohio legislature again, going along with, you know, these oppressive ideas, these unAmerican ideas and so on, on that side of sort of what emerges from the legislature. It’s things. It’s more discourse, it’s more conversation, it’s more stuff that activists can do things with. And then on the other side, just on the production of the petitions, you know, we know that a lot of people sign these petitions. So the act of collecting the signatures is also an act of social movement organizing. Right? You have a meeting, you talk about the issue, you go collect the signatures. Women and men, black and white, did sign these petitions. And so, you know, you have on the on that petitioning side is like that. The process of creating the petitions and sending them in is also a mobilizing process. So there’s a lot going on there. And I think given what they were up against, petitioning was one of the only things they could do, but also a really effective way of expanding their message.
Leah Litman [AD].
Leah Litman So we’ve been talking about this a lot in terms of states and localities and decisions being made there. But the District of Columbia shows that this was not just a state story, but there is also a big federal dynamic as well. And a lot of the federal activity is centered on D.C. and port cities and the privileges and immunities clause of Article four of the Constitution, you know, as a kind of basis for individual civil rights. So can you explain how the privileges and immunities clause enters the chad? And maybe in the course of doing so, could you share with us the story of Gilbert Horton?
Kate Masur Sure. So what we’ve been talking about so far is mainly intrastate issues, questions of how to affect the politics of an individual state from within that state. Never was the United States Constitution sort of invoked in those issues because it was completely intrastate and there wasn’t anything that explicitly said in the Constitution at that time that states couldn’t have these kinds of racist laws. The privileges and immunities clause, which is Article four, Section two of the Constitution, came in when people used it to make claims that had to do with crossing state lines. And so the clause says the citizens of a state are entitled to the privileges and immunities of citizens of the several states. And first of all, you know, I always say, like it’s a very ambiguous clause in the Constitution. We look at it now and it looks ambiguous. People at the time also thought it was kind of weird and ambiguous and didn’t really know what it was supposed to be doing. So there was actually a lot of wiggle room and a lot of room for discussion, particularly of how it applied to free African-Americans. And this is actually one of the things that I really did not know was going to come up in the book when I started the book. And it wasn’t until I came across archival documents in the Massachusetts State archives that showed this whole issue of African American sailors who were arrested and incarcerated in southern ports, and that the Massachusetts the kind of the movement in Massachusetts was really involved in trying to get them free and trying to get the southern states to stop doing that and southern authorities to stop arresting and incarcerating free black sailors who were just doing their job on a ship putting into southern ports. That I started to realize, you know, that there was this whole thread of U.S. constitutional stuff going on and that I could kind of pull on that thread and see more and more and more about that issue. So Gilbert Horton was a free black man from New York who was a sailor working on a ship. And his we know that his ship put into port in I think it was Norfolk, Virginia. And then he somehow made his way up to the District of Columbia and he was in Georgetown on the wharfs when and he some white guy, two guys come up to him and say, you know, who are you? Show me your papers, basically, because they’re sort of acting on the principle that any African-American person at large within the District of Columbia, which is a slave holding jurisdiction, is presumed to be a runaway slave unless he can show otherwise. So he evidently did not have his free papers with him, or at least not to the satisfaction of these folks. And he was arrested and put in jail in D.C. And then according to the law, which was typical of a slave holding jurisdiction, authorities then had to advertise for him in the newspaper. So it’s sort of an advertisement that says Gilbert Horton says he’s a free man, doesn’t have his papers. And what the advertisement is supposed to do is kind of publicize his arrest so that his ostensible owners enslavers will come and pick him up. This was in 1826. So because newspapers were traveled and picked up on one another’s what one another were publishing word of his arrest and incarceration gets to New York, where he’s from. He’s from Westchester County, and people in his county then organize to try to get him out of jail. And they put together his free papers. His father comes forward and says, I’ll do anything to help get him free. William J, who is a prominent lawyer, the son of founding Father John Jay, is involved in this. They approached the New York governor with a request that he get in touch with the president of the United States to try to expedite getting Gilbert Horton out of prison. And Gilbert Horton is eventually released. He spends about a month in jail in Washington, D.C. But where do the privileges and immunities clause come in? One of the arguments that people make for why, you know, the D.C. people are saying we’re just enforcing local law like we didn’t do anything wrong. The system work the way it should because Horton was arrested, he eventually, you know, was able to show that he was free and he was released. So what’s the big deal? And what the people in New York are saying is, no, his rights as a citizen are being violated. He’s a citizen of the state of New York. The privileges and immunities clause of the United States Constitution says that the citizens of a state are entitled to the privilege. Just in immunities of citizens of several states. And that means that you can’t just arrest a citizen of the state of New York and some other jurisdiction for doing nothing other than being a black man walking down the street. And that’s a really great example of a thread of argument that kind of continues throughout the period that I’m writing about of people bringing forward these cases of black men who are arrested in Southern jurisdictions and saying these arrests are violations of the United States Constitution.
Melissa Murray And a thread that’s like completely absent from Dred Scott, as Leah notes, which really relies on the fact of these localized apartheid laws to prosecute this idea of the inevitability of black disenfranchisement in Dred Scott. It’s a really it’s a fascinating story. And it’s one you sort of said this just a minute ago. It’s one that really relies on a multiracial coalition like the people who come to Gilbert Horton’s aid are other African-Americans, but also other groups, abolitionists, people who are well connected with journalism posts. Or they can spread the news about his situation. Were these coalitions surprising to you or were there strange bedfellow coalitions that formed that perhaps gave you pause that you hadn’t expected?
Kate Masur Sometimes they were. And I found it interesting and to some extent a little bit inexplicable, except insofar as history often is really surprising. So one example of that that I keep coming back to is a guy named Jacob Barker, who was this white guy from Nantucket. He was a businessman. He was involved in all kinds of high level sort of shenanigans in politics in New York. And he ends up moving to New Orleans and trying to start a business. And he’s a rich guy, businessman kind of guy. He is from Nantucket, where that community in the late 18th century was a whaling based, seafaring kind of community that where there were Native Americans and African-Americans who worked on ships. There was a lot of Quaker influence. So it’s possible that he had some decent principles about race from growing up. I don’t know. But in the event like he ends up in New Orleans, he publicly in writing, he has a couple letters published in the Liberator newspaper. He he loathes the abolitionists, and he thinks abolitionists should just cut it out and stop talking about abolishing slavery. On the other hand, he is willing to go into jails in New Orleans and try to advocate for freeing the black northern sailors who are incarcerated there. And he writes a letter to the Liberator giving advice on how black sailors could stay safe coming into New Orleans like Witch Doctor Park ad as opposed to other ones. He kind of says things are so dangerous here that I don’t even know if you should keep working on these ships. But it’s it’s really interesting that, you know, this person who really goes out of his way to criticize abolitionists and distance themselves from abolitionists is also actually doing this work in New Orleans. There is another reference that he’s getting paid. Sometimes he gets hired to do it. So you could think of him as just someone who’s willing to work for money. But it’s interesting. And he goes publicly on the record with this, you know, kind of concerns about the fate of free black sailors. So there are these there are interesting configurations of people that, you know, can’t always be explained by our traditional ideas about who’s on which side.
Kate Shaw So, Kate, I want to shift gears for a second and give you a chance to talk. You alluded to this earlier, but a major part of the story that you tell us about Partizan evolution, right, in particular, sort of the internecine warfare of the Whigs, know the Democrats. You have the emergence of the Republican Party, some other minor parties along the way, liberty, free soil. So can you just say more, since it sounds like that’s one of the initial motivating questions of the project about how these political party dynamics both shaped and were shaped by the conflict that you describe in the book.
Kate Masur I think it’s sort of underappreciated how much anti-slavery people or the kind of people who would be fighting for racial justice got involved in party politics. So, again, I mean, one of the stereotypical ideas people have about who is an abolitionist is William Lloyd Garrison, the white abolitionist from Massachusetts, who advocated staying completely out of party politics. He was so pure that he didn’t want anyone to be involved in politics. But there’s a whole other branch of the movement, including among African-Americans and white activists, who believe that they should go into politics and try to get elected and try to use their votes to push for electing people into office who will advocate for what they want. So some of the people who end up becoming Republicans in the Civil War and reconstruction are the kind of people who. Advocate for the 14th Amendment and the Civil Rights Act of 1866. Some of them got their start in these anti-slavery third parties. The first one was the Liberty Party in the early 1840s. And these people, again, they were Salmon Chase comes to mind is one of them from Ohio, kind of cutting their political teeth on the issue of repeal of the black laws. Really what was more important or most important locally for a politician like Salmon Chase in the 1840s, like when it came to Ohio, It’s not slavery, it’s repeal of the black laws. And so he and other people develop a pretty significant track record of articulating an idea of racial equality or what kind of a democracy they wanted. I mean, Salmon Chase also advocated for Black men’s right to vote in the 1840. So he was kind of going all the way in that direction toward the right to vote in collaboration with black activists in those places. So, yeah, I mean, how Americans organize for politics is through parties. And so I was really interested in tracing the trajectory of some of those people and what kinds of issues influence them before they get onto the national stage in the 1860s.
Melissa Murray Can I jump in here just on that last point? Again, as you just said, all of these struggles in the 1800s are basically about whether the United States can exist as a multiracial democracy. And it is genuinely an open question at that time with a number of leaders, including Chief Justice Marshall, weighing in to say that it’s just not possible. Like you can have abolition, but it must be accompanied by colonization, which is to say we must ship free blacks to someplace else. It can’t be here in the United States. So can you talk briefly about the colonization movement and how it interacts with this? And where does it lose steam, if at all?
Kate Masur There was a large chunk of elite white opinion that said that, yes, this country can never be a multiracial democracy if everyone is free, but you have people of different races according to their theory, there’s a kind of natural racial animosity that happens among races or there’s a natural racial hierarchy in which some will oppress others. And so their notion and people who advocated colonization came from a variety of different kind of political persuasions. Some were more pro-slavery than others. But their idea, generally speaking, was this country needs free black people to leave. And they thought, go to Liberia where they would be. Yeah, it’s such a it’s such a it’s complicated in a way. It’s like they’re Christian African-Americans who are going to go to Liberia, settle there. Chris, help Christianize Liberians make an outpost for American commerce in West Africa and also govern their own society and not have to be oppressed by white people. And so, you know, that’s the kind of rosy vision of Africans free black people leaving the United States and going to Liberia, that these white colonization nests had the movement. I mean, it was their their organization was called the American Colonization Society. You know, one of the things that they really believed that black Americans, particularly free black Americans who had access to media and to political organizing, they really pushed back against the presumption that black Americans didn’t have the same right to be in the United States and to be citizens and to be part of this society, as white people did. So the American Colonization Society folks were sort of like, yeah, they should go back to Africa, like in quotes, you know, And black Americans were like, We were not born in Africa. You know, many of them were like, we’re not going back there. Like, we’re from here and we’re Americans.
Melissa Murray Well, that’s interesting. It’s sort of like shades of the DACA debate today in really interesting ways.
Kate Masur Yeah. I mean, they. Right. They are saying, you know, we belong here and we want to be recognized as people who fully belong here and the institutions are our institutions. So the leadership of the American Colonization Society included, as you said, Chief Justice Marshall, Henry Clay, a lot of prominent people in the Whig Party in particular, and they kept hammering away at this issue. I mean, it’s people often talk about it most For the 1820s, some radical, white, radical abolitionists started out life as colonization us and then came to reject colonization and argue for a multiracial democracy. William Garrison is an example of that. And yet in the 1850s, you see the American Colonization Society kind of resurging and saying, look, you know, things are only getting worse for free black people. Let’s like really try to convince them to go to Liberia. And the reality was they they were very unsuccessful. And the majority, the vast majority of black Americans who ended up in Liberia were people who had been enslaved, who. Their enslavers said you can be free if you get exported to Liberia, basically. So a lot of the people who ended up in Liberia were there on kind of not having had full consent to the idea. You know, it’s like the choice. If you want to be free, you can be in Liberia. If you want to continue to be enslaved, you can stay here.
Melissa Murray Such good choices. Such great choices.
Leah Litman I was just about to say like this is also very similar to some of the debates surrounding immigration or even abortion, right. Gaza versus Hagen and other restrictions on undocumented women’s ability to access abortion rights. Sometimes the federal government during the Trump administration essentially put the choice while you can choose to leave. But like, if you stay here, we’re not going to allow you to get access to an abortion anyways. Yeah. So I wanted to follow up on something you said, which was about making institutions representative and making institutions kind of everyone’s institutions. And this also relates to an answer you gave to an earlier question of mine, which is about the contingency of multiracial democracy in the Radical Reconstruction Congress and how the GOP, the Republican Party at that time could have taken the approach in northern states that oppose slavery. United States would be a racial apartheid, but they didn’t. And I guess fast forwarding, you know, many years to kind of where we are now as the Supreme Court and other institutions, individuals and entities are taking steps that really undermine the architecture and edifices for the potential of a multiracial democracy. Are there lessons for contemporary readers to apply to our own tumultuous times and efforts to secure a multiracial democracy?
Kate Masur There are a few lessons, and a lot of historians have a kind of somber caste. I mean, look, we can’t do anything about, you know, the very crummy and, you know, depressing aspects of American history. But given the sort of fundamental threads of racism and kind of continued inability of the United States to sort of live up to the promises of like the best version of a multiracial democracy, I think one lesson of this book is, first of all, how hard it is when things don’t work out in the most beautiful way, that they’re not all of the things that we would want to see. We have to understand the magnitude of what is trying to be accomplished in trying to create a multiracial democracy. If you start with, you know, more than 200 years of African slavery and the premise of Native American dispossession and the kind of complete disrespect for Native people who were on this land first, and you think about how deeply that shaped the consciousness of people historically, then you have to understand. Winds that are not like the most amazing things still as winds. Right. And you have to sort of see that this is an incredibly long project and it is a really hard project. And so as frustrating as it often feels like it is. I think one of the key things is recognizing that when you get some of what you want, you have to celebrate that even if it’s not all of what you want and keep trying. And I think, you know, one other thing, there’s a couple other things about this book. One is, you know, again, the long duration. So this is sort of like glass half full and glass half empty. A lot of the people that I write about, you know, pushed for greater democracy, greater racial equality and didn’t live to see the good outcomes that eventually came along. And so, you know, this is long, DeRay, kind of history that exceeds the length of any person’s kind of lifetime. Another thing I like about these folks is they took advantage of their wins. So when they got into office, they like, made changes and they didn’t necessarily sort of then hold back and say, Oh, I don’t know if we should really go for it. I mean, those Republicans during Reconstruction, they really did kind of go for it in terms of changing the Constitution to make the vision, try to make a country that looked more like what they wanted to see.
Melissa Murray I love those as just sort of lessons we can learn from those actors at that time. But I actually think there’s also a lesson to be learned from the book itself. I mean, the sort of experience of localized apart hide the shift to the reconstruction era. I mean, it raises a question like, what did the reconstruction framers mean? Like and right now this debate is happening at the Supreme Court in the context of affirmative action, where some are saying they meant it had to be completely race blind. And this book suggests that that could not have been what they meant, because the whole question of race was so infused in all of these struggles. And the way you tell it, reconstruction is very much a repudiation of apartheid, which could not be about race blindness.
Kate Masur Absolutely. I mean, I think there’s abundant evidence just in the constrained world of talking about congressional debates in 1865 and 1866. That shows that the Republicans did not require a race blind approach to policy. They saw that free people, for example, would needs education in a way that white people did not. They saw that there were certain economic needs that free people might have, that even white refugees did not. They made policies that distinguished on the basis of race. Quite honestly, sometimes they use the term freed people. Oftentimes they also use the term black or Negro or colored. So, you know, in a lot of ways, just in a very constrained, you know, kind of like 14th Amendment moment, we already see them not at all endorsing and in fact, repudiating the idea that policies need to be race blind, as you guys know, like the president of the United States, Andrew Johnson, made this argument that, oh, your congressional policies are going to single out black people for special favors. What did Congress do to override the president’s veto? I mean, they did not subscribe to that idea. And then if you add the kind of antebellum history that I’m writing about, the notion, you know, they’re trying to get rid of these policies that were, as you said, about racial apartheid, about pure and simple racial subordination, and that there’s not an implication from that to this notion that what they wanted was some kind of like utopian race blind world.
Kate Shaw The ghost of Andrew Johnson is really back, like whispering in the ears of some members of the current Supreme Court. Like, without question.
Leah Litman I give my students that veto message in part for that reason, because it feels like we are living in an era where we are fantasizing about a re-imagining like a race blind reconstruction, which just was not it.
Kate Shaw And they rejected it. But, you know, it just it’s it’s it’s obviously kind of resurging. We actually just wanted to take another beat on the current court and actually maybe to shift to Dobbs. It’s obviously not the topic of your book, but you are a preeminent historian and we have you here and we have obviously, as have many, many others, really criticized the the kind of history that is on display in Sam Alito as majority opinion in. DOBBS But as an actual professional historian, we wanted to ask what you make of the use of history in Dobbs. What grade would you give it if one of your students submitted the Dobbs version of abortion history on a final exam?
Melissa Murray The right answer is F.
Kate Shaw In your history class, and why.
Kate Masur Can I just give them an F?.
Kate Shaw On this podcast you can.
Kate Masur I have actually sort of done a deep dive into this recently because I had the opportunity to teach a class at Northwestern on the history of abortion in the United States to 14 undergraduates. And it was.
Melissa Murray Were any of them named Samuel Alito?
Kate Masur Sadly no, but you know, have course, will travel. But so it was really a joy to teach that class. And, you know, we went back to I mean, as as you guys know, as anybody who bothers to read history knows, there’s a really tremendous body of literature on American history showing that. Let’s start with the idea that there was a commonplace assumption that people who were pregnant could end the pregnancy before quickening or the idea that when they feel the fetus moving, that that was a common law tradition, that that was kind of received wisdom in the United States, that people talked about it in terms like inducing the menses, you know, resuming the menses and things like that, that, you know, there wasn’t the kind of sort of really. Well, actually, I was going to say the really clear distinction between a miscarriage and an induced abortion, but we’re seeing that there never really was that. And so and then only gradually at the behest of Horatio’s store and a bunch of other, you know, elite white male medical practitioners who persuaded state legislatures to begin to criminalize abortion. And so, you know, one of the things that Alito and the court said was we don’t find it right to an abortion in the history and traditions of the United States. I mean, the only way that you could sort of throw a bone to that a little bit is the idea of a right to an abortion is more of a 20th century, late 20th century idea of that. Right. But the practice of abortion and the wide acceptance of the idea of a women’s kind of ability to decide to terminate a pregnancy was widespread. And I mean, some really great work of historians has also showed that even after those laws that criminalized abortion, the laws were not widely enforced and prosecutors would often not try to enforce the laws. Or if they did, juries wouldn’t convict. Right. And so there’s a lot of evidence from the late 19th century and from the 20th century of widespread American acceptance of the idea that people can end a pregnancy, particularly before quickening, and that that is their business, and that that is sometimes what needs to happen for the interests of the person who’s pregnant for because of, you know, economic situations, because of their own sense of themselves and what they want, because of health, you know, for health reasons. And so I really enjoyed going through and working through that history with these students and then at the end of the court are coming to Dobbs and, you know, being very clear that this history was at best really one sided. Right. Really, you know, leaving out a huge part of the story.
Melissa Murray Are you suggesting that Samuel Alito is a poor historian, a selective and itinerant parser of legal sources? Is that what you’re saying?
Kate Masur I would say I wouldn’t really characterize him as a historian at all in legal sources, but, you know,.
Melissa Murray Casual reviewer of books.
Leah Litman Like he basically looked at the history and said, I saw good Proctor with the Devil and like, that was the bottom.
Kate Masur But also, I mean, quite honestly, how can you base today’s decision on that history in the first place? Women couldn’t vote. You know, women, people, these men.
Melissa Murray That was the point, Kate. We didn’t let them vote. So that’s why we like that history. It isn’t unencumbered by the opinions of women and people of color. That’s what makes it great.
Kate Masur It’s just the worst.
Melissa Murray Like I said, F plus F plus. I think that’s the perfect place to end things with giving the Dobbs Court and F plus for history.
Leah Litman The book is called Until Justice be Done America’s First Civil Rights Movement, and it is available at all major booksellers, including Bookshop.org a Strict Scrutiny sponsor. Thank you so much, Kate Masur, for sharing this important work with us and with our audience.
Kate Masur Thank you.
Kate Shaw Don’t forget to follow Crooked Media on Instagram and Twitter for more original content host takeovers and other community events. You can also find us on Instagram, and if you are as opinionated as we are, please consider leaving us a review in your favorite podcast app.
Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin and Music by Eddie Cooper with production support from Ashley Mizuho, Michael Martinez and Ari Schwartz. We’ll see you soon.
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