The Making of a More Perfect Union

February 21, 2022
Richmond Law's Kurt Lash has produced an authoritative collection of documents related to the passage of the 13th, 14th, and 15th Amendments.
By Kim Catley

In the years leading up to the passage of the 13th Amendment, which abolished slavery in the United States, a coalition formed among Black civil rights advocates, white abolitionists, and the women’s rights movement. It was a supergroup of activists — Frederick Douglass, William Lloyd Garrison, Wendell Phillips, Elizabeth Cady Stanton, Susan B. Anthony, Lucy Stone — all aligned and working together toward freedom and abolition.

After the 13th Amendment was ratified in 1865, however, the coalition began to crack.

Douglass had long believed that there would never be equality in the South, that Black Americans would never be treated as equal citizens or receive equal protection, until they had the right to vote. Then, they could establish political power centers to negotiate economic rights, education, and more.

At the same time, women’s suffrage advocates were also calling for the right to vote, but they began to see momentum shift toward giving Black males the right first. The arguments between the two factions intensified. Suffragists Anthony and Stanton drew criticism for accepting funding from George Francis Train, a wealthy philanthropist who saw women’s suffrage as a way to contain the political power of Blacks. Meanwhile, Douglass, who supported universal rights for women, argued that the right to vote was more crucial for Black men.

The disagreement came to a head at the annual meeting of the American Equal Rights Association on May 12, 1869. After Stanton and Anthony made their case that educated white women deserved the right to vote before Black men did, Douglass stood up to address the crowd.

“I must say that I do not see how any one can pretend that there is the same urgency in giving the ballot to women as to [Black men],” he said. “With us, the matter is a question of life and death. It is a matter of existence, at least, in fifteen States of the Union. When women, because they are women, are hunted down through the streets of New York and New Orleans; when they are dragged from their houses and hung upon lamp-posts; when their children are torn from their arms, and their brains dashed out upon the pavement; when they are objects of insult and outrage at every turn; when they are in danger of having their homes burnt down over their heads; when their children are not allowed to enter schools; then they will have an urgency to obtain the ballot equal to our own.”

Anthony countered: “I want to say a single word. The old anti-slavery school and others have said that the women must stand back and wait while the other class shall be recognized. But we say that if you will give the whole loaf of justice and suffrage to an entire people, give it to the most intelligent first.”

Soon after the confrontation, the coalition split. Lucy Stone stayed with Douglass to support the 15th Amendment, which would guarantee the right to vote to any male citizen, regardless of “race, color, or previous condition of servitude.” Stone also formed the American Woman Suffrage Association, which concentrated its efforts at the state and local level; meanwhile, Stanton and Anthony formed the National Woman Suffrage Association and continued to pursue a constitutional amendment. The rift continued until 1890, when the two organizations merged, ultimately working together toward ratification of the 19th Amendment.

The transcript of that 1869 argument between Douglass and Anthony is part of a new two-volume collection called The Reconstruction Amendments: Essential Documents, collected and curated by Kurt Lash, E. Claiborne Robins Distinguished Chair in Law. The books, totaling more than 1,300 pages, were published in 2021 by the University of Chicago Press; they include original speeches, debates, newspaper articles, and state ratification documents. For Lash, they represent the culmination of a decade of research on the 13th, 14th, and 15th Amendments — the amendments that abolished slavery, safeguarded basic national liberties, and expanded the right to vote.

Early in his career as a constitutional scholar, Lash had worked to ferret out primary sources, such as congressional debates and public speeches; in addition, he often reached out to other scholars around the country asking what documents they had found. Out of those conversations, he realized that many scholars wanted a standard set of materials to study and argue about.

“We should all have a common basis of historical knowledge that we can then debate,” Lash said. “That’s how knowledge is furthered. That’s how understanding of history is furthered. Eventually I decided, if only for my own sake, that I would try to put something like this together.

“I realized soon enough why no one had done it.”

The public's mind changed during this national conversation over slavery. These documents show that.

Lash began by collecting congressional debates about ending slavery, beginning just after the end of the Civil War. The vote on the 13th Amendment initially failed in the House but passed on a second attempt after much public debate. Lash expanded his search accordingly, adding newspaper op-eds and petitions from Susan B. Anthony and others in the women’s and abolitionist movements calling for the end of slavery.

Lash repeated the process for the 14th and 15th amendments, again finding the national debate played out in the pages of newspapers. “I wanted all of that drama of the debate to be included in this collection,” he said. “And so, what started as a simple focus on debates in Congress turned into a collection of American public discussion, and it just got more and more exciting along the way.”

Even as his research expanded, Lash continued to let congressional debates serve as a guide. When congressmen repeatedly mentioned the writings of pro-secessionist and former U.S. Vice President John C. Calhoun, Lash found those essays. When Republican debates frequently referenced a set of pro-freedom materials, Lash knew those documents were necessary for understanding the conversation.

Then, to help narrow the content down to the 1,400-page limit set by his publisher, Lash applied his own theoretical constraint: Materials had to involve a discussion of the Constitution. That meant books like Harriet Beecher Stowe’s Uncle Tom’s Cabin and Douglass’ Narrative of the Life of Frederick Douglass, an American Slave, while critical to the national debate, didn’t make the cut.

“It had to be a collection that all of us — whether conservative, liberal, libertarian, or whatever — could agree on,” Lash said. “These are the documents that all of us should be working on. So I was constantly consulting with historians and constitutional historians all around the country regarding what documents needed to be in there.”

The final collection is a trove of previously hidden stories, speeches, and critical moments, including one that hits especially close to home for Lash.

After the 13th Amendment initially failed in the House, President Abraham Lincoln was reelected, and he encouraged a second vote. The transcript of the House proceedings includes not just debate remarks, but the gallery’s hisses and cheers as each vote was cast. When the final two Democratic representatives changed their votes to support the amendment, resulting in its passage, the scene was pandemonium. Congressmen leaped on their desks. People in the gallery — men and women, Black and white — cheered and waved their handkerchiefs. Cannon fire erupted across the city.

An illustrator captured the scene — the only image in Lash’s entire publication. And somewhere, deep in the crowd, is Lash’s own great-great grandfather, Francisco Perea, the territorial representative for New Mexico.

“It’s really personal to me that my family has roots in that particular moment,” Lash said. “So, some things in this collection are a personal joy to me. And some things are just a joy in terms of our history as a country, to have these phenomenal moments of expansion of freedom.”

Before coming to Richmond Law in 2017, Kurt Lash, the E. Claiborne Robins Distinguished Chair in Law, served on the faculties of the law schools of Loyola Marymount, Pepperdine, Northwestern, and the University of Illinois.

After 10 years of researching and collecting, transcribing documents by hand, expanding and contracting his scope, Lash has a deeper understanding of the Reconstruction Amendments and their lasting influence.

At a Constitution Day lecture at the Law Library of Congress in September, he explained how public participation during the passage of the 13th, 14th, and 15th Amendments led to an expanded view of the Bill of Rights. Before the Reconstruction Amendments, the U.S. operated under a federalist understanding of the Constitution — the idea being that a national government was necessary but must be limited. As such, the Bill of Rights applied only to the federal government; state governments at the time were not bound by its restrictions.

But as public debate over slavery and individual rights played out across the nation, the conversation shifted, and citizens began to see an expanded role for the Bill of Rights. Abolitionists and civil rights groups looked to the Fifth Amendment, which guaranteed the right to due process, as an argument against slavery. Northern states then argued that the Bill of Rights should apply to the Southern states and that slavery could not be reconciled with the rights as outlined.

“This was a transformed understanding of the Bill of Rights,” Lash said. “Today, we look at the Bill of Rights as a symbol of American freedom. It wasn’t that way in the beginning; the public’s mind changed during this national conversation over slavery. These documents show that.”

The Reconstruction Amendments also marked a dramatic shift in public participation in congressional debates. While the Constitution had been shaped in secret, with the founders cloistered in Philadelphia to debate how the young nation would be governed, the Reconstruction Amendments were framed on city streets and in the pages of national and local newspapers.

“Before I started my research, I had no idea how involved the entire American public was in the framing of these amendments,” Lash says. “Anyone who wanted to, and who was literate enough to read the newspapers, could find out what was happening in Washington, what constitutional proposals were being debated. They had the ability to contact their representatives and sometimes actually affect the direction of the debates.”

The involvement of Black Americans was particularly influential. In the span of five years, slavery went from being common practice throughout the South to being abolished with the adoption of the 13th Amendment. But, Lash says, Black Codes — state laws that applied only to Black people — continued to restrict the basic freedoms of former slaves in the South, paving the way for debate over the 14th Amendment to guarantee equal protection for life, liberty, and property. Ratification, however, required the vote of those same Southern states.

In 1867 and 1868, Congress passed the Reconstruction Acts, outlining the terms for Southern states to be readmitted to the Union. Among other requirements, states had to allow all men, regardless of race, to participate in the formation of new state governments and be allowed to vote.

The freed men in the South mobilized. They created new permanent state governments and voted on representation in the state assemblies. In South Carolina, where the Civil War had begun just a few years earlier, freed Black men organized to elect a majority Black legislature. In turn, they revisited the 14th Amendment and voted to ratify, bringing freedom to their own state.

“The freed men, who had so recently been enslaved under the prior constitutional regime, had now become political players,” Lash said.

The ratification of the 15th Amendment in 1870 established the nationwide right of all men to vote (a right women would receive 50 years later). In celebration, Douglass drafted a letter to be read at a meeting in Rochester on April 5, 1870. The letter is also the final document in Lash’s collection.

“The revolution wrought in our condition by the fifteenth amendment to the Constitution of the United States, is almost startling, even to me,” Douglass wrote. “I view it with something like amazement. It is truly vast and wonderful, and when we think through what labors, tears, treasures and precious blood it has come, we may well contemplate it with a solemn joy. Henceforth we live in a new world, breathe a new atmosphere, have a new earth beneath and a new sky above us.”

Kim Catley is a freelance writer in Richmond.