Guns, Weed, and the Forgotten Framers

Summary

Podcast Summary

Podcast: Amicus With Dahlia Lithwick | Law, justice, and the courts
Episode: Guns, Weed, and the Forgotten Framers
Date: June 20, 2026
Host: Dahlia Lithwick
Guests: Mark Joseph Stern (Slate), David Gans (Constitutional Accountability Center)

---

Episode Overview

This episode of Amicus centers on two major themes:

1. The Supreme Court’s recent unanimous decision in United States v. Hamani, a case at the intersection of the Second Amendment and marijuana law, discussed by legal columnist Mark Joseph Stern.
2. A deep dive with David Gans into the long-overlooked history of post-Civil War Black conventions, their visionary constitutional advocacy, and the ways their contributions challenge prevailing “originalist” narratives about the Reconstruction Amendments.

The episode blends timely legal analysis with historical context, highlighting the Court’s changing attitudes and the urgent need to reclaim a fuller, more inclusive picture of constitutional history.

---

Key Discussion Points and Insights

1. Supreme Court’s Opinion in United States v. Hamani: Guns, Marijuana, and the Second Amendment

[03:25–15:03]

Case Details and Holding | [04:49]

• Facts: Ali Hamani, a marijuana user, was found with weed and a firearm in his home. Federal law prohibits illegal drug users from possessing guns. Hamani contested that this violated his Second Amendment rights.
• Ruling: The Supreme Court ruled unanimously in Hamani’s favor: “The Second Amendment protects at least this marijuana user's rights to have a gun in his home for self defense.” — Mark Joseph Stern [05:24]

Court’s Reasoning | [06:04]

• Justice Gorsuch’s Opinion:

  • Relied heavily on the culture of the Founding Fathers, noting their own heavy alcohol use as indicative of how the original drafters viewed substance use and gun rights.
  • Quoting Gorsuch: “John Adams took a tankard of hard cider with his daily breakfast… George Washington often drank three glasses of Madeira in the evening…” — Mark Joseph Stern [06:35]
  • The Founders likely would not have seen regular substance users as warranting disarmament.
  • Gorsuch also drew a distinction between contemporary habitual drunkard laws and the federal drug-user gun prohibition, arguing the latter was too broad.

• Contemporary Legal Context:

  • Marijuana is now legal in many states and widely regarded as less dangerous than alcohol.
  • The opinion reflects “a relatively sane understanding of marijuana and its users and refuses to diminish another civil liberty just because there might be some animosity toward drug use.” — Mark Joseph Stern [14:25]

Doctrinal Messiness | [08:30]

• The majority opinion did not clarify the broader Second Amendment test set out in Bruen, perpetuating confusion:
  • "It’s still a huge mess... the vaporous flexibility of the Bruen test just leaves room for judges to say that defendants they sympathize with have a right to bear arms and defendants they don't, do not." — Mark Joseph Stern [10:05]

Cultural and Judicial Shift | [11:45]

• Mark and Dahlia observed the stunning pivot in the Court’s approach from cases like Bong Hits 4 Jesus (2007), in which the justices were “aghast” about mere references to marijuana, to today’s Court that “has just made peace with marijuana in a way that would have shocked anybody 20 years ago.” — Mark Joseph Stern [12:52]

Civil Liberties and Controlled Substances | [13:30]

• Mark notes the historical, often racialized misuse of drug laws to erode other constitutional rights, including the First and Fourth Amendments.
• The decision signals some restraint by the Court in letting such animosity undermine civil rights.

Memorable Moments

• “I think it’s mandatory. I almost think that they are nothing short of Justice Gorsuch coming to bring me a gummy with his hands. So that’s the dream.” — Dahlia Lithwick [06:04]
• “The Court gets the message. The Court views the Second Amendment very favorably. And the Court is not going to relax Second Amendment protections just because the federal government... thinks all [marijuana users] should be disarmed.” — Mark Joseph Stern [14:30]

---

2. Resurfacing the “Forgotten Framers”: Black Conventions and the Second Founding

Guest: David Gans
[22:34–67:45]

Historical Background | [23:14]

• Black convention movement began in the 1830s, flourishing during Congressional debates over the 13th, 14th, and 15th Amendments (1864–1869).
• Over 50 conventions, often in packed churches and meeting halls across the country, represented first mass meetings of formerly enslaved people to articulate demands for rights and true liberty.

The Conventions’ Revolutionary Vision | [25:57], [29:32]

• Black Americans not only participated; they positioned themselves as co-creators of constitutional meaning.
• The Declaration of Independence was not merely symbolic but a “touchstone” and a “blueprint for multiracial democracy”:
  • “These promises have to protect us. And they view the only way of achieving those promises as with a multiracial democracy.” — David Gans [29:32]
• Convention demands were widely covered in both Black and white press, rippling into public debate.

Expansive Notions of Equality and Protection | [32:53]

• Black convention delegates advocated a broader and more substantive vision than what even white Republicans/abolitionists were willing to grant.
  • “For the black conventions, the right to vote was so central. This was critical to freedom... unless you have the power to play a role in how laws are made... that only leaves you with second class citizenship.” — David Gans [32:53]
• The conventions called for “positive rights”—not just absence of government interference, but active government protection of rights, bodily integrity, and the right to education.
  • “One of the radical things about the Equal Protection clause is this idea. The government has an obligation to provide the same protection to all persons.” — David Gans [34:25]

Bodily Autonomy, Dignity, and Economic Rights | [39:49–41:17]

• The conventions’ demands anticipated modern understandings of dignity, family autonomy, and economic empowerment as fundamental rights—concerns neglected by today’s minimalist constitutional readings.
  • “It is striking how many of the conventions speak explicitly to bodily autonomy as kind of a fundamental right, the right to your body, and speak of all the horrors of slavery and what black women were subjected to.” — David Gans [41:17]

Colorblindness vs. Race Consciousness | [42:30–47:16]

• The current Roberts Court’s colorblind approach is shown to be historically illiterate:
  • The conventions fought for “the most fulsome [comprehensive] view of racial equality at the time, but also a recognition that the law had to be race conscious, it had to take account of race.” — David Gans [45:00]
• The historical struggle for equality was race-conscious by necessity due to entrenched racialized disadvantages.

Prejudice, Dignity, and Anti-Discrimination | [51:00]

• The conventions stressed both official and private prejudice—contrary to today’s Court, which often restricts equal protection to government action.
  • “They talk about the right to respect and the right to dignity... after living lives that were built on violence and disrespect, they powerfully said, we demand the right to belong.” — David Gans [51:00]

The Guarantee Clause & Modern Voting Rights | [55:30]

• Gans points to the often-ignored Guarantee Clause as a tool for Congress to protect multiracial democracy and fight gerrymandering:
  • “The basic idea... is the US has a responsibility to ensure that states don't devolve into oligarchies... so often when we talk about partisan gerrymandering... [the] Guarantee Clause is a really important supplement because it says, yes, you can get at the states.” — David Gans [57:40]

Recovering Black Americans’ Role in Constitutional Meaning | [59:59]

• The historical narrative privileged elite white men, erasing Black public meaning-making.
• “If we are honest about history, they were a really critical part of the public... Without their votes, there’s no 14th amendment, there’s no 15th amendment.” — David Gans [63:16]
• Justice Ketanji Brown Jackson is noted for seeking “a broader and more inclusive constitutional history” on the Court.

Democratic Participation and Hope for Change | [65:18–67:45]

• Progressive constitutional change has always required “people, activism, and holding meetings and pushing new ideas and demanding constitutional change”—not just court rulings.
  • “There has to be press pressure and activism and the development of new ways of thinking.” — David Gans [65:18]
• Referencing Hamilton: “if you’re locked out of the room where it happens, you kind of make your own room and make it happen.” — Dahlia Lithwick [67:45]

---

Notable Quotes & Moments (with Timestamps)

• “You and I spent this morning talking about all of the ways in which we don’t sleep and we don’t eat and we pace and we, like, gnaw our fingernails and then we get like three relatively innocuous cases.” — Dahlia Lithwick [03:30]

• “These guys were drunk all the time… [they] probably wouldn’t have thought that they could be lawfully disarmed because of it… people who use marijuana today surely at least have some second amendment right to own a gun if they're using it responsibly.” — Mark Joseph Stern [06:51]

• “The Founders’ drinking habits as Second Amendment history is certainly going to be the most memorable thing I take from this opinion.” — Dahlia Lithwick [07:45]

• “The conventions offer this really radical view of the Declaration [of Independence]... these promises have to protect us. The only way of achieving those promises is with a multiracial democracy.” — David Gans [29:32]

• “It's not only the black conventions [that use the Declaration], you see that with Seneca Falls in 1848, with the women's rights movement... the Declaration as the greatest sentence ever written.” — David Gans [30:35]

---

Timestamps for Major Segments

• [03:25] – “Opinionpalooza” with Mark Joseph Stern; intro to the Himani case
• [04:49] – Facts and key holding in United States v. Hamani
• [06:04] – Justice Gorsuch’s historical drinking analogy and court’s shifting attitudes to marijuana
• [11:45] – Discussion of Bong Hits 4 Jesus, shifting Court attitudes
• [14:25] – Civil liberties, substance use laws, key takeaways
• [22:34] – David Gans on the Black conventions’ pivotal constitutional role
• [29:32] – The Declaration of Independence as a touchstone for Black constitutionalists
• [32:53] – Broad, positive vision of equality espoused by Black conventions
• [41:17] – Emphasis on bodily autonomy, family integrity, and dignity
• [42:30] – Colorblind constitutionalism critiqued; historical reality of race-conscious reforms
• [51:00] – Prejudice, dignity, and anti-discrimination in Black convention advocacy
• [55:30] – Guarantee Clause discussed as a tool for present-day voting rights protection
• [59:59] – Whitewashing and recovering the original public meaning
• [65:18] – Activism and the living Constitution, lessons for the future

---

Summary

Amicus’s “Guns, Weed, and the Forgotten Framers” is a twofold exploration of constitutional law’s present and past. Mark Joseph Stern dissects a surprising Supreme Court consensus around gun rights for marijuana users, exposing the ongoing doctrinal confusion and the broader social evolution. Dahlia Lithwick’s interview with David Gans then recovers the erased history of Black American constitutionalism, revealing how inclusive, radical visions for freedom are embedded in amendments that modern originalism treats thinly or ignores. Through accessible storytelling, humor, and clear-eyed critique, the episode urges listeners to reclaim their stake in constitutional meaning—and reminds us that both progress and regression in American law have always depended on a robust, inclusive public struggle.

---

For further insights—including SCOTUS’s internal divisions on Bruen and criminal justice, or more about the fascinating character of Justice Gorsuch—check out the Amicus Slate Plus bonus episode.

Transcript

[A]

Support for this podcast is brought to you by Walden University. Ever catch yourself thinking, what if I could go after what I actually want and really make a difference? You're not alone. And that's exactly why I want to tell you about Walden University. For over 50 years, Walden has helped working adults like you get the W with the knowledge and skills to build the future you want and make a difference where it matters most. If you've been waiting for the right moment, this is it. Head to WaldenU.edu and take the first step. Walden University set a course for change Certified to operate by Chev.

[B]

This episode is brought to you by Gab. The youth mental health crisis is all over the news and we know social media is driving it. 45% of girls and 32% of boys feel overwhelming stress from being on social media, and together, 25% of both feel worse about their own lives. Listen, I've watched firsthand what social media does to my boys and I am pretty comfortable saying it makes them feel smaller and sadder and less than. So here's the good news. A company called Gab is tackling the problem by doing something no one else is doing. Their approach is tech in steps. Tech in Steps works by providing safer phones and watches for kids with no social media tailored to every age, from GPS tracking enabled watches for younger kids to phones with parent enabled apps for tweens and teens. I can't recommend Gab enough and right now use our code to get the best deal on a kid's phone that will make parenting easier and give you more peace of mind. Visit gab.comamicus and use code amicus for an exclusive offer. That's GabGabb. This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwaite. You have no doubt noticed that we are trying to cover the end of this Supreme Court term with less of that Will they, won't they? Breathless sportsbooking and a bit more historical context about how the hell we got to this place of democratic airlessness and also how we may someday, fingers crossed, find our way back to a meaningful and robust democracy. This game of waiting for SCOTUS to punch us in the face for the last two weeks in June gets less fun every day. But it's what we have to do. So we're going to start with Thursday's decision in Himani, a case involving the Second Amendment marijuana, and a unanimous ruling that covered up some very telling splits and concurrences among the justices. Later on in the show, we're going to pan back much further with David Ganz of the Constitutional Accountability center to discuss the work he's been doing on the black conventions and the second founding, a profoundly important resurfacing of forgotten history about how black Americans crowbar their way into the fight for American equality and what it will require for all of us to find our way back into that project.

[C]

They are kind of using every means in their power to make the freedom that they fought for a real one.

[B]

But first, it's opinionpalooza with Mark Joseph Stern. Hi, Mark.

[D]

Hi there, Dahlia. How sore is your face from getting punched by the Supreme Court?

[B]

I mean, you get so ready, right? You and I spent this morning talking about like all of the ways in which we don't sleep and we don't eat and we pace and we like gnaw our fingernails and then we get like three relatively innocuous cases. But it means there's 17 potentially dreadful ones to come. So we wait and fight another day.

[D]

The one thing I will say is that after this decision, I think that the Supreme Court would want us to use weed as part of our stress management for opinion days. I think it's pretty clear as we'll discuss that they would support a gummy the night before. At a bare minimum, not just support.

[B]

I think it's mandatory. I almost think that they are nothing short of Justice Gorsuch coming to bring me a gummy with his hands. So that's the dream. It's the dream. Although I think I dreamt that last night. Okay, Mark, we got three opinions on Thursday and the headliner is definitely United States v. Hamani, in which the court unanimously. There, I said it unanimously, ruled that a marijuana user named Ali Hamani has a second amendment right to own a firearm. So this was not, in fact, the bitterly divided gunfight that we've come to expect from every single Second Amendment case at the court. Can you first of all remind us of the facts in this case?

[D]

Yes. So the defendant here, Hamani, was found by law enforcement to have both marijuana and a gun in his home. He openly admitted to using marijuana about every other day. And he was charged under a federal statute that prohibits illegal users of controlled substances from possessing a firearm. The federal law says if you unlawfully use controlled substances, you cannot have a gun. Hamani challenged the indictment. He said, no, this violates my second Amendment. Just cuz I use a little weed doesn't mean I have to be disarmed. And the Supreme Court Unanimously agreed and said that indeed the second amendment protects at least this marijuana user's rights to have a gun in his home for self defense.

[B]

You said in deed, but what I heard was in weed. Okay, Mark. In a lot of ways, Justice Gorsuch's majority opinion becomes an ode to legal marijuana. And maybe we shouldn't be surprised. He lived in Colorado when that state legalized recreational cannabis in 20. He went to bat for the gummy aficionados during oral argument. Is the upshot of this opinion basically that marijuana's kind of chill and fun and the founders would have liked it?

[D]

It basically is. Which tracks Justice Gorsuch's comments during oral arguments. He clearly does not see marijuana as an especially dangerous or harmful drug. And one of the points that he makes over and over again throughout this opinion is that the founders themselves were very heavy drinkers, very heavy users of alcohol. I'll just quote, he said that John Adam took a tankard of hard cider with his daily breakfast. Some say James Madison consumed a pint of whiskey daily. George Washington often drank three glasses of Madeira in the evening. Not enough to be considered a heavy drinker in his day. Thomas Jefferson enjoyed three or four glasses of wine at dinner. In fact, just a few days before the framers signed the Constitution, a farewell party gathered for General Washington at Philadelphia's city tavern, where 55 guests are said to have ordered 54 bottles of Madeira, 60 bottles of wine, eight bottles of old stock, 22 bottles of Porter, eight bot cider, 12 bottles of beer, and seven large bowls of punch. So I read all of that because the upshot for Gorsuch here is, look, these guys were drunk all the time. Like the people who wrote and ratified the second Amendment, who created our federal government and the system we're still operating under today. They were constantly getting trashed, right? And they probably wouldn't have thought that they could be lawfully disarmed because of it. And so when we look at disarmament laws today, that's the point of inquiry. And given that alcohol was so heavily abused but people who'd it could still own guns then, people who use marijuana today surely at least have some second amendment right to own a gun if they're using it responsibly.

[B]

It is amazing, Mark, that on this polarized court that it can agree on nothing. We got a unanimous decision that day. Drinking is a good thing. Like it is clearly the solution to all that divides us. Now, I don't want to be too fast and loose. There is actual legal reasoning in this Opinion to the extent that you can call any application of the like extremely vaporous brew and test legal reasoning. But Gorsuch does say that habitual drunkard laws, that's the name for it from the founding, aren't sufficiently analogous to the modern statute to pass muster. So I think everyone was hoping that this was gonna be the case that helps people Bruin become more coherent or more defensible or more applicable. Is doctrine still a mess after Thursday?

[D]

I think it's still a huge mess because all that Justice Gorsuch does is the move that Bruen obviously allows, which is to say, oh, yeah, this law looks kind of similar, but we're just going to distinguish it because we don't think that it should be a sufficient historical analog here. So Gorsuch does this close read of the habitual drunkard laws at the founding, and he says, okay, well, those laws involved people whose drinking quote rendered them practically incapacitated and incapable of managing their affairs. So it wasn't just regularly drinking a lot that made you a criminal habitual drunkard. It was drinking so much that it destroys your life and makes you actively dangerous. Now, the court did not say, and some had argued for this, that you basically can only be disarmed if it's proved that you consumed intoxicating substances and used your gun then, like, while you were drunk or high. The court doesn't say that, but it does say that there needs to be evidence that you've completely destroyed your life and your mental capacities with drink or with weed to fit into this kind of category. And that wasn't present here. And this is where, again, Gorsuch kind of flaunts his knowledge of, like, the legal cannabis market today. He has this whole section about how, you know, weed is legal in most states in some forms, that the federal government just recently rescheduled some marijuana products and is rescheduling the rest of them as we speak. And he says, well, maybe Himani just used a mild gummy as a sleeve sleep aid a few times a week. We don't know and the government doesn't tell us. So at the end of the day, this guy seems like a pretty trustworthy man. He can have a right to bear arms. Great. Seems fine. I think most reasonable people would agree, doesn't clear up the doctrine whatsoever. And in fact, maybe further shows that the total sort of vaporous flexibility of the Bruin test just leaves room for judges to say that defendants they sympathize with have a right to bear arms and defendants they don't. Sympathize with do not have a right to bear arms.

[B]

So we're going to talk a little bit more about the liberals and their manifest discontent with Bruin in our bonus episode, the plus bonus episode that we're going to do as well. But I did want to flag one aspect of this case that is very interesting as a longtime court watcher, and that is it wasn't even 20 years ago the Supreme Court rules in a famous case that a high school student had no first Amendment rights to hold up a sign that said memorably, bong Hits for Jesus at a school event. And I'm old enough to remember during oral argument, the conservative justices were like, absolutely, like, overwhelmed with Reefer Madness style drug warrior hostility toward marijuana. It was the worst of the worst. And even the reference on a jokey, admittedly incoherent sign was too much marijuana to tolerate in our world. And now it seems the court on a dime is so okay with pot mark that it says users can not only, like, hold up signs, evidently they can bear arms. This is like such a huge shift in a couple decades, right?

[D]

It is a huge shift. It's really remarkable. I mean, Scalia, I remember during oral arguments in the Bong Hits for Jesus case, was just aghast that, you know, anyone would think public school students have a right to advocate for le. He also had famously sort of contorted his vision of the commerce clause to allow the federal government to prosecute people for having, like, one homegrown plant of marijuana at home. Like, the dude hated drugs. And, you know, a lot of the other conservative justices have historically been drug warriors. But I guess this just shows to me, first of all, how much culture really does permeate the supreme court, right? In 2026. Everybody knows that taking a gummy to sleep sometimes does not make you a dangerous person. Everybody knows that legal weed is really not a big deal and that it's actually way less dangerous than alcohol. Gorsuch points out there are some studies that show that more Americans use weed than alcohol now, which is, like, probably a good thing in terms of health consequences. Not that he says that explicitly, but I think it's pretty obvious. And the court has just, like, made its peace with marijuana in a way that would have shocked anybody 20 years ago and 30 and 40 years before that. And I guess the point that I want to make, the second one that's maybe even more important is that, like, so often the government uses controlled substance laws to reduce and infringe upon other civil liberties, right? We Saw this in the bong hits for Jesus case where it's like, oh, but weed is illegal so we can crush the First Amendment rights of public school students. You see it actually in a lot of the Supreme Court's cases involving Fourth Amendment searches and seizures where the police will claim that they smelled marijuana and then there's no marijuana, but they find something else. And so the search was legal. Right. This is a huge problem. Police just making up claims that they saw bong through the window that wasn't actually, actually there. And this is a well known historical issue because during Prohibition, the Supreme Court upheld a lot of infringements on civil liberties that were based on unlawful searches based on suspicion of alcohol. And, you know, the court actually weakened a lot of civil liberties in order to let the government persecute people who were consuming or selling alcohol. So I think that what we're seeing is like here, not a huge Second Amendment blockbuster decision, not a decision in some ways that I love because I think every validation of Bruen, unfortunately takes us a little bit further down the road. That makes it harder to reverse it in the future, but a decision that fundamentally makes sense and that reflects a relatively sane understanding of marijuana and its users and refuses to diminish another civil liberty just because there might be some animosity toward drug use. The Court gets the message. The Court views the Second Amendment very favorably. And the Court is not going to relax Second Amendment protections just because the federal government in this case says, oh, we think all. And on the whole, with my caveats, I think that's a positive sign.

[B]

I'm remembering Justice Kennedy's line. Times can blind us. Right? It is fascinating to see that we are now essentially saying that because the framers were pounding and managed to produce the founding documents, we should all be doing it before we write opinions. That was a paraphrase. Thank you, Mark.

[D]

Thanks, Dalia.

[B]

That's another check in the column of Justice Gorsuch. Wildcard. And amicus listeners who've binged Slate's becoming Justice Gorsuch in this most recent Slow Burn season know exactly what we are talking about here. Mark, you are now heading over to the amicus bonus room for more SCOTUS insights on guns and weed. And Justice Gorsuch teaming up with Justices Sotomayor and Justice Jackson on a criminal justice case which also just came came down on Thursday. You all can join us for that conversation right after this episode by becoming a Slate plus member. Go to slate.comamicusplus to join us. We're going to take a short break. This episode is brought to you by Quints Summer always makes me rethink the pieces I'm reaching for every single day. The lighter fabrics, the better, softer materials, the things that look good the minute you put them on but also look kind of effortless and elevated. And it's one of the reasons I keep coming back to Quince. They focus on high quality essentials, but without the luxury markup. It's that rare balance where everything feels elevated but still effortless and easy. Quince has beautiful everyday pieces like 100% European linen pants, dresses and fabric tops with styles starting at $32. Everything at Quince is priced 50 to 80% less than similar brands, and Quince works directly with ethical factories and cuts out the middlemen. So you're paying for quality and not brand markup. And it's not just clothing. Quince has really become a destination for elevated essentials across home kitchen, bedding and beyond, making it easy to bring a more premium feel into everyday life. I want to talk again about the Italian pebbled leather sling bag from Quinn's in the color cognac. You could wear it crossbody, you could wear it around your waist and it is the perfect little piece to wear for a day trip or jumping on a train or seeing a gallery, or for any day in your summer where you just don't want to lug a heavy bag around. It's also, frankly gorgeous. Elevate your summer wardrobe. Go to quinn's.comamicus for free shipping on on your order and 365 day returns. Now available in Canada too. That's Q-U-I-N-C-E.comamicus for free shipping and 365 day returns quince.comamicus Today's show is brought to you by Vanguard. To all the financial advisors listening, let's talk bonds for a minute. Capturing value in fixed income is not easy. Bond markets are massive, murky and let's be real. Lots of firms throw a couple flashy funds your way and call it a day. But not Vanguard. Vanguard bonds are institutional quality. Institutional quality isn't a tagline. It is a commitment to your clients. It means top grade products across the board. The Lineup includes over 80 bond funds. They're actively managed by a 200 person global squad of sector specialists, analysts and traders. Lots of firms love to highlight their star portfolio managers like it's all about that one brilliant mind making the magic happen, happen. Vanguard's philosophy is a little different. They believe the best active strategies shouldn't be locked away with one person, they should be shared across the team. That way, every client benefits from the collective brain power, not just one individual's take. The bond market is complex, and it's not something one person or a small team can realistically keep up with. Vanguard's been in the game a long time, and their scale gives them a serious edge. They're able to invest across all kinds of sectors, maturities and geographies more, which means they can spot and act on opportunities that others might miss. So if you're looking to give your clients consistent results year in and year out, go see the record for [e-mail] audio that's vanguard.com audio all investing is subject to risk. Vanguard Marketing Corporation Distributor this episode is brought to you by Monarch Summer is almost here, and that means it's time to start planning your vacation without having to worry about weather. You can afford it. And if you're anything like me, the key to all of that is keeping your finances organized so you can spend less time worrying and more time enjoying your summer. Monarch is the personal finance app that tracks everything accounts, investments, savings goals and spending. And maybe the most unexpected gift for me is that it also creates a channel in a shared language so suddenly you and your partner partner can just track your spending, set your budgets, visualize your mutual financial goals, and do so all in one place. Get your first year of Monarch Core for half off, just $50 with promo code Amicus Monarch takes the mental load of tracking your finances off your plate with AI weekly recaps and diagrams that help you avoid spending spikes and understand exactly, exactly where your money is going every month. One thing I quickly learned from their cash flow visualizations is just how much of my income goes to all sorts of monthly subscriptions for things I don't even use and didn't know I had. Use code [e-mail] to get your first year of Monarch Core half off. At just $50, that's 50% off your first year at Monarch Core with Code Amicus. The Roberts court's concerted effort to hollow out the 14th and 15th amendments in so much of its jurisprudence, perhaps most infamously in Dobbs, more recently in Calais, has been justified by a woefully blinkered view of the second founding. In a forthcoming piece in the Stanford Law Review, David Gann's excavates a crucial part of constitutional history rarely taught in law schools, never cited by originalists. Yet this history shaped the Reconstruction Amendments and the ratification process that followed between 1864 and 1869, black Americans gathered in more than 50 conventions and through these meetings and the demands for rights and freedoms that emerged from them, became co creators of what is modern constitutional law. David Ganz has been writing and thinking about progressive constitutionalism for 20 years. He's director of the Human Rights, Civil Rights and Citizenship program at the Constitutional Accountability center and an experienced constitutional litigator and scholar. His forthcoming piece in the Stanford Law Review is called Forgotten Black Conventions and the Second Founding. He also wrote about the lost history of the conventions two weeks ago in Slate, citing David's work in a recent piece for the New York Times, my friend and former colleague Jamelle Bouie pointed to the black conventions as a, quote, potent example of the power of ordinary Americans to interpret, shape and change the Constitution for themselves, end quote. Which is perhaps the fresh breeze we all need in this moment of democratic airlessness. David Ganz, welcome back to Amicus.

[C]

Thanks so much for having me.

[B]

Daya, congratulations on the forthcoming peace. I think it's sort of of superbly timed, if depressingly timed, but also I really do feel like it opens up a host of channels to think in more constructive ways than gnashing your teeth about the Supreme Court. So I thought maybe we can just start with these black conventions and you could perhaps situate listeners who have never heard of them at all in the who, what, where of these mass meetings that were held all around the country. I guess I'm asking you to just paint me a picture of what was taking place and how that went down.

[C]

The black convention movement, which is long forgotten. The story really begins in the 1830s, around the time of the birth of the abolitionist movement. And they're holding conventions all throughout the pre war period. The conventions that sort of fascinated me the most were the ones that were held right when the 13th, 14th and 15th amendments were being debated, considered. And in many ways this was the moment when after decades in which slavery dominated American political life, the possibility of fundamental transformative constitutional change was on the table. So this is sort of the high moment. And there are 50 conventions there, national conventions that are being held in the North. One of the stunning developments is they're the first conventions of formerly enslaved black Americans. The first time black Southerners met as a body to make demands, to catalog rights and wrongs, to gather their sites of protest. They're held in packed churches and meeting halls. There are tons of people sitting and watching. Their demands are widely discussed. You can read the press. They're certainly covered in the black press, but they're also covered by the northern wide press that are amplifying their claims. It's a moment when the nation is thinking about how do we move on from the stain of slavery? 1864, the Civil War is not yet over, but slavery is being destroyed, in large measure because of the war, but in large measure because of. Of actions that blacks are taking during the war. And then ultimately in 1864, playing a huge role in fighting to win freedom and save the Union. And so there's a huge focus on the views of black Americans and particularly the ones in the South. And there is a movement, a spread of conventions in 1864, 1865, throughout this period, throughout the southern states. And then there are important conventions in northern states that are continuing as well. But one of the striking things of this period is hearing the demands of black Southerners and their understandings of what freedom and equality means. The sort of central document for these conventions is the Declaration. The Declaration is sort of viewed as kind of the touchstone blacks offer this really radical view of the Declaration.

[B]

Before we get to the Declaration, I want to ask one other, if I may, framing question, which is you just said something really telling. You said this was being covered not just in the black press, but in the mainstream press. This was happening around the country. You had swaths of black Americans from different economic backgrounds, like, you know, huge differentials in experiences coming together. And I'm just curious, did they believe they were making history with this form of inclusive constitutionalism? Did they think this was some kind of dream that they were just performing in order to make a point? Or did they genuinely believe that they were going to be in fact rethinking the meaning of the Constitution for all time.

[C]

This period is both a moment of great promise, particularly by 1865 when you see the emergence of black Southern conventions. Slavery has been destroyed. Some of them start Even before the 13th Amendment has been ratified. But the Civil War has broken the back of slavery. So it's a moment of great promise. But. But you know, Lincoln is assassinated. Andrew Johnson steps into power. He is happy to return power to the white South. There is wide scale violence against black Americans. There are new white run governments in power that want to go back to slavery, just not have the name. They pass these black codes designed to introduce new forms of racial servitude and strip black Americans of their rights. And so in many senses, this is a movement against the oppression that black Americans in the south are facing. They are kind of using every means in their power to make the freedom that they fought for a real one. And they are holding these conventions. They go from sort of one place to another. And I even one of the difficulties of this paper was there's so many conventions. The documents they produce are so rich. But I had to decide which are the conventions that are sort of representative of what we're seeing, even though that meant that there were some rich conventions that I couldn't cover.

[B]

So you were about to explain the role of the Declaration of Independence as text, as a sort of a foundational touchstone. And I guess I want to flag, you know, in the no Kings marches this past year, the Declaration starts to bubble up again. Right. Folks are feeling like the text of the Declaration of Independence speaks directly to both this moment of tyranny and also to the role of the citizenry in throwing that off. And you are starting to say, and I think it's so important that the conventions saw the same document as current, alive, urgent, calling on them to take action. And at the same time, I think you write in the piece, they radically reinterpreted the Declaration of Independence as a blueprint for getting them the multiracial democracy they were seeking.

[C]

No, that's exactly right. Some of these meetings precede there even being the 13th amendment, let alone the 14th or 15th. And so they look. Look to the Declaration as the source of their rights. Just those first two sentences of the Declaration they talk about, you know, government has to represent the consent of the governed, the promise of life, liberty, and the pursuit of happiness. These are kind of critical ideas that you see repeating. And they say, all men are created equal. That includes us. There's no interpretation of those words that don't include us. These promises have to protect us. And they view the only way of achieving those promises as with a multiracial democracy. The point of the Declaration was we were revolting from Britain, who denied Americans an equal voice in our affairs. And you see time and time again black conventions turning to the Declaration as a source of powerful ideals and saying, these were the constitutional promises our nation was founded on. We have to make them real. And that's. I mean, it's not only the black conventions. And Jamel mentioned that you see that with seneca Falls in 1848, with the women's rights movement, there are books that talk about sort of the Declaration as the greatest sentence ever written because it has this transformative power that goes beyond sort of what was meant in 1776 and makes it a charter for liberty, equality and democracy for all. And I think that the black conventions knew that, and they pushed very hard on that idea. They talk a ton about the idea of no taxation without representation. They say that's what 1776 was fighting for. That's what we're still fighting for. So they're using our founding principles in a transformative way that reject the original Constitution that, that contained so many protections for human bondage.

[B]

Can we talk about. I think this is shot through the whole piece. And so much of your work generally, is that the kind of equality, the promise of constitutional protections that you're referencing and that they were calling for in those conventions was so much less crabbed even than what the white Republicans and the abolitionists who picked up their cause. They wanted them to settle for a much more circumscribed vision of equality. And it's. All of that is a vastly less crabbed reading of equality than we're getting right now from the six conservatives on the Roberts court. And I would love for you to pull a little bit at the different threads of what was definitional equality that was being raised. And as you noted, and it's important to say you didn't lay out every single one of the conventions. You were looking for common themes at multiple conventions. But what does that look like? Because it is so vastly different from what we think of as American notions of constitutional equality.

[C]

So, one, there's a big fight over what is equality. Is it about civil rights? And to many white Republicans, it is. So the 14th amendment very pointedly doesn't address the right to vote. There was a feeling like, that's too radical, that's going too far. And that led Frederick Douglass to say, this is an emasculated form of citizenship and we want real equal citizenship. And for the black conventions, the right to vote was so central. This was critical to freedom. And it sort of underlined, unless you have the power, power to play a role in how laws are made which are fundamental to the enjoyment of rights, that only leaves you with second class citizenship. And the experience of these all white Southern governments was they were going to use their powers to oppress black Americans, leave them without any freedom. They would absolutely refuse to protect them in any way. And so, so against the backdrop of all the violence, one of the key critical ideas was this idea of protection. And that's, I mean, I think that's something that's so important that the Supreme Court has really never vindicated. So you have the equal protection clause, which emerges and is added to the Constitution and has that keyword protection. And you read Supreme Court opinions on the 14th Amendment on the Equal Protection Clause. There's a lot of focus on equal and protection. Just sort of like, oh, it's sort of there. But nobody pays any attention to this idea of protection. But it was incredibly important, and it was based on this old idea that in return for allegiance, the government has this obligation to protect you. One of the radical things about the Equal Protection clause is this idea. The government has an obligation to provide the same protection to all persons. And that was added against the backdrop of indiscriminate racial violence that African Americans were facing in the wake of the end of the Civil War and private suppression of their rights. And it was critical to say, yes, the government has an obligation to protect and to do so on the basis of equality. That's an idea that the Supreme Court has never done justice to. And if you read the history, it's really fundamental. Once you think, oh, protection, like, what is that about? You see it popping up through all the major civil rights legislation of Reconstruction. There's a sense the states are not protecting black Americans. So Congress has to step in and ensure that protection, whether that's passing the Civil Rights act of 1866, whether that's setting up a Freedmen's Bureau that provides access to education, that provides positive goods like access to food and housing, whether that's the Ku Klux Klan act, where the federal government has to step in to redress racial violence. And the idea of protection recurs throughout the black conventions.

[B]

David. One of the places I really flagged it, and I think I had also lost this history, this notion that there's gonna have to be positive rights. It's not enough that the government leaves you alone to thrive and flourish. The government has to protect you from all these efforts to diminish you. And one of the places I clocked it in your piece, of course, was the 14th Amendment's insurrection clause. And that's, of course, the provision that was stripped down to the studs by the Supreme Court in the Colorado case. Right. Seeking to take Donald Trump off the ballot after January 6th. And one of the things you point out that maybe isn't. Isn't necessarily intuitive is that that was coming up at the black conventions. That was an idea that was driven by black Americans that kind of later gets picked up. But what is it that the prevention of former, what they call traitors from running for office again? Why is that key, or at the moment deemed a key, to protecting formerly enslaved Americans?

[C]

Well, so Lincoln is killed. Johnson takes power. He's happy to pardon white Southerners even those who had played a huge role in the Confederate army and government. And you have kind of these effectively ex rebel governments taking power. They have a bitter hatred and prejudice towards black Americans who played a fundamental role in wiping out the Confederacy. They have the same feeling to white Unionists. And, you know, you read throughout this period, the white Southerners who are now taking power have a bitter prejudice and hatred. And so some of the conventions sort of point out, if you're turning power back to the folks that we defeated on the battlefield, any hope of freedom, equal citizenship, is going to be lost. And so we need structural protections against the kind of racialized domination that blacks are experiencing in this moment. And so section three is key to that. I love that you brought up the point of positive rights, because I think one of the brilliant ideas that you see in the black conventions, and this comes out in the national convention that's held in Syracuse in 1864. Black Americans say, not only do we want our fundamental rights respected, but we have constitutional needs that the government has to meet. And they sort of put a name to an idea that is around in the period. You know, you have the work of the Freedmen's Bureau, which is an early example of the federal government alleviating poverty, providing access to goods of services to lift people from poverty into full citizenship. But, you know, that 1864 Syracuse Convention underscores this idea that we have constitutional rights and we also have constitutional needs. And among those, probably the number one is protection. This idea that the government has sort of a positive obligation to protect you. Again in the 14th Amendment, that extends to all people. Another positive need is access to education. The Supreme Court has sort of said, oh, education, that's not a fundamental right. But, you know, if you look at both the documents coming out of the black conventions and the debates over the Freedmen's Bureau act and other Reconstruction debates, access to education is fundamental to equal citizenship. And so that's sort of one example of these documents are just incredibly generative of a constitutional vision that the Supreme Court has long ignored.

[B]

Again, a recurring demand is bodily autonomy, right, family autonomy, dignity, all of those. You know, I remember you did an immense amount of work around Dobbs saying that what was being protected under that very much maligned bucket of substantive due process rights was to protect against the folks who were taking your children away from you, who were raping your wife, you know, who were saying that your marriage was not a real marriage. And I really thought again of you as I was reading it and the ways in which you insisted that that narrow, narrow, cramped reading that Alito gave to what rights were being undermined in Dobbs completely rejects all of these positive dignitary rights to do with your body, what you want to do, and to do with your family and your children, what you need to do in order to be free. And in addition to that sort of dignity and bodily autonomy, one of the other things you mention frequently is the ability to work, the ability to own property. These are all not things that we think of as, oh, we're keeping the government from harassing you. This is no. In order to thrive and flourish. These are the cornerstones of American freedom.

[C]

It is striking how many of you, the convention, speak explicitly to bodily autonomy as kind of a fundamental right, the right to your body, and speak of all the horrors of slavery and what black women were subjected to. One of the interesting documents that you see kind of recur through the black conventions are these declarations of rights and wrongs, which are interesting because they're both a list of the abuses that they've suffered and then the rights that they are claiming. And. And many of those center the ideal of bodily integrity and other. When you look at unenumerated rights are really fundamental. And the rights they're claiming are so often rights that are informed by the horrors of enslavement, which didn't make it into the Bill of Rights, but were fundamental to freedom and equal citizenship and bodily integrity is kind of right at the top of that. So it's like another piece of evidence that the way Dobbs portrays our constitutional heritage of freedom is just completely out of whack. It misses that many of our most cherished rights are not gonna be rights that you find within the four corners of the Constitution.

[B]

And as you say, David, that's all been completely jettisoned by the Roberts Court. Construction of a colorblind Constitution, right of how they think of originalism. And I'd love to talk, if we could, about the ways in which the Roberts court's insistence that we live in a colorblind moment and that a colorblind Constitution requires taking away every shred of these kinds of positive rights and how intentioned that is, both with the work of the black conventions and black activism around the conventions and the Reconstruction Amendment. So can you maybe offer to us just a quickie seminar on the ways in which all of that has been stripped away when we listen to John Roberts or Samuel Alito or other justices in the conservative majority tell us that it is sufficient to honor the Reconstruction Amendments and all that was poured into them. If we stop discriminating on the basis

[C]

of race, we have to start with sort of the most recent one, Calais. And one of the things that you learn from the black conventions is the fight over the right to vote was a fully race convention. And it's really baked into the 15th Amendment. That was the fight that black conventions fought strongest. And when white Republicans were initially unwilling to write multiracial democracy and voting rights into the 14th Amendment, black conventions continued to sort of hammer home this idea. And it was a very race conscious idea. It was like, we need the right to vote for our protection. And they talked about the violence they experienced, the, the right suppression that was coming out of all white legislatures in the south. And they said, we can't be free unless we have the right to participate equally in the political system. So the idea of racial polarized voting, which is something that the Supreme Court talks a ton in its voting rights cases, voting was completely racially polarized. You had, you know, a racially polarized electorate. You had a political system divided along racial lines. And the plea for voting rights is we can't protect ourselves. So it was very much a race conscious ideal. And the Roberts court just ignored that aspect of the history. I mean, to the extent that their ideas are rooted in history, it sounds a lot like the white Democrats who opposed the 15th Amendment because they said, look, this gives extra protection to black Americans and who opposed legislation to enforce the 15th Amendment on the same grounds. And so the Roberts court just fundamentally ignored the history. The other point that I think is really interesting and worth noting is the black conventions were at the forefront of pushing for the most fulsome view of racial equality. Even white Republicans, many of them were content with having some pockets of racial discrimination. And it was the black conventions who said, no, we need racial equality across the board. Every right that whites enjoy, we possess. But they understood that there were areas where the law had to take account of race. And so the voting example is one of the ones. But you know, when they talked about jury service, they often said, we can't have a jury of our peers unless they're black people who are participating on the jury. So even at this moment when they were pushing for the broadest view of racial equality, and you read some of their statements and it's like, oh, that sort of sounds like colorblindness because they talk about the word white is struck out. There should be the same law for everyone. It's not. It's a fulsome view of racial equality. The most fulsome at the time, but also a recognition that the law had to be race conscious, it had to take account of race. So this is just like another piece that adds to the mountain of other evidence that shows that this sort of view of the colorblind Constitution is just completely wrong. The major piece, of course, is the Freedmen's Bureau act, which was attacked as being discrimination against whites because it provided benefits to black Americans as well as to some white refugees to lift them out of poverty and help ensure equal citizenship. And it was defended as in the wake of the oppression of slavery, Congress had sort of a positive forward looking role in realizing the promise of equal civilization. So I think the black conventions kind of adds to what is a pretty unimpeachable case that the Reconstruction amendments are really race conscious at their core.

[B]

More in a moment with David Ganz. And if you want to listen to Amicus ad free, become a Slate plus member at slate.com amicusplus NPR understands your curiosity is boundless, but your time is not. That's why they make up first the three biggest news stories of the day, with the reporting and analysis to understand them in under 15 minutes. Up first doesn't just give you the headlines, it gives you the context. That's what I like about Up First. Their correspondence can take a complex, often overwhelming story like the Iran war and break down the latest updates in ways that I can understand and process. I really appreciated their recent coverage of the cases still pending at the Supreme Court this term. And a recent episode on the World cup truly illuminated how Donald Trump's America makes everything political, even a soccer ball. Up first is the difference between knowing the news and really understanding it. Not just what happened, but how it came about, why it's a big deal, and what happens next. Follow NPR's Up first podcast so you can understand what matters and what happens next. It's hard news through a human lens. This episode is brought to you by netsuite Next. They say that every day your business is late to AI, you fall two days behind. But how do you keep up? The competition is only moving faster. Fortunately, there's NetSuite next. NetSuite is the AI powered business management suite that securely connects all of your data. It brings together financials, inventory, commerce, HR and CRM into a single source of truth. Trusted by over 43,000 customers, NetSuite Next is the next huge leap in how business gets done because AI is built into everything you do and it's customized for a wide range of industries so it supports the way way your business truly works. If I'd needed this product, this is what I would use for the first time ever. You can try netsuite next for free. If your revenues are at least in the seven figures, go to netsuite AI Amicus. Built for every industry, ready for every boardroom. Netsuite AI Amicus. Let's return now to my conversation with David Ganz. David, one of the things that is searingly obvious reading the language that you cite from the conversations that took place in the black conventions is that time and time again, the request is for things like dignity. The request is that there not be prejudiced. There's a sense in which you can hear some of what is going to someday become the sheer inversion in the arguments that are being made, for instance, by Justice Alito around voting and around affirmative action, that the discrimination today that is being perpetrated is against white people. And it's so powerful when you read what has animated this request that comes up in the black conventions, these inchoate values of dignity, bodily autonomy, non discrimination, the request to just treat us like you treat everyone else. And it is really telling how profoundly that gets distorted in the conversations we're now having about, quote, unquote, colorblindness. And it's really, for me, a punch in the gut to see that these requests came from a complete lack of power, an absence of fairness, an absence of equality and trust, agency, autonomy, dignity. And now we're talking about white guys who can't get into Harvard.

[C]

It is striking. They talk about the right to respect and the right to dignity, which I think we think of much more as sort of 20th century ideals. But after living lives that were built on violence and disrespect, they powerfully said, we demand the right to belong. I'm glad you brought up the prejudice point. You know, the key is prejudice was fundamental to their understanding of equality. And it's not just prejudice from official sources. It's private prejudice. And. And so back to how the current Supreme Court makes a mess of this. You know, you can look at the Scarmetti case where Justice Barrett said, oh, no, anti transgender legislation doesn't deserve heightened scrutiny because there's no history of discriminatory laws, you know, and that's the only thing that counts. But if you look at black conventions, as well as the debates over the 14th amendment, they're very concerned about private discrimination and private prejudice and a state that looks the other way in the face of private prejudice. So if we take the 14th amendment seriously, those things Totally count. And Barrett's view is just based on willful blindness to a pretty fundamental part of the history that animates the Reconstruction Amendments.

[B]

You actually mention in the piece that there are other cases pending beyond just the voting rights cases that are result of this same kind of sleight of hand of deliberately misreading the 14th Amendment. You want to talk about that for a minute?

[C]

We've already touched on the trans sports case, which is still pending. And we could have an equal protection jurisprudence that took prejudice seriously and would provide a potent weapon against the kind of spread of laws that are targeting trans people based on animus. I mean, I think animus is sort of a concept that now the Supreme Court is. The conservatives are less and less favored. But the idea of prejudice is kind of really fundamental to the 14th Amendment. And the idea that Barrett propounded in Scrometti that we don't have to be concerned with private prejudice. We can only sort of look to is there a history of discriminatory laws when deciding what the equal protection guarantee means? So this gets back to sort of the protection idea. It's like protection against prejudice when there are private violations of rights the state has an obligation to protect. I mean, obviously the case for birthright citizenship is incredibly powerful. But you know, when you read the black conventions, one of the things that's so striking is many of them start addressing our fellow citizens. They're saying we are citizens and we are addressing our white neighbors as fellow citizens and claiming the mantle of citizenship and equal citizens citizenship. This doesn't start with the black conventions in the 1860s. It goes back to many of these pre war conventions when you had northern blacks who were free but were not treated as equal citizens. So I think the black conventions underscore the principle of equal citizenship and birthright citizenship that is so powerfully rooted in the opening words of. Of the 14th Amendment.

[B]

David, I wanna talk about voting for one more beat. You've made this really important point that voting becomes the touchstone right. It is the guarantor of all other rights. You wrote a really smart piece in Slate recently in the wake of Calais in which you said there's still a way to rebuild a really robust set of voting rights protections, even after Cal. And you center it on the guarantee clause, which is another piece of text that has been almost completely lost to history. And I would love to hear you just take a beat to tell us what it is that the guarantee clause was. And maybe your larger point, which is we can still redress this incredibly toxic race to the bottom, gerrymandering. That is destroying America. If we root it in a clause of the Constitution that nobody knows anything about.

[C]

The Guarantee clause imposes on the United States a duty to maintain for state governments a Republican form of government. And this idea of, you know, what is a Republican form of government was something that's all over the black convention. They insist that governments in which they have no voice in vote are not Republican. At the 1865 convention that met in Charleston, South Carolina, which is one of the wonderful conventions of the period, it kind of happens right as the 39th Congress is starting to meet. There's a line from one of the speakers that a government that's based on the oligarchy of the skin is not represented Republican. And so they push hard on the idea that, you know, we can't have a Republican form of government unless we have multiracial democracy. This is like another idea that is first viewed as too radical. But then Congress finally gets around to, and it brings us to this key moment during Reconstruction, which is really important, but never gets the attention it deserves, which is the Reconstruction act of 1867, in which Congress says, we've seen enough. We've seen the bitter racial oppression go going on for years. They sweep aside these all white governments throughout the south, and they say Southern states now have to create new Constitutions, hold new elections, and black men have to have the right to vote in those elections. And they say our authority for this is the Guarantee clause, which Charles Sumner calls the Sleeping giant. And then black men go to the polls, and because of their votes, the 14th and 15th amendments, amendments actually get added to the Constitution. Without that act, without the fight for voting rights, we don't have a 14th and 15th amendment. And I think this history kind of shows the Guarantee Clause has great power to be used for multiracial democracy. The basic idea of the Guarantee clause is the US has a responsibility to ensure that states don't devolve into oligarchies or, or adopt undemocratic forms of government. And it's the US's obligation to play a role in overseeing those state governments. So one of the keys of the Guarantee clause, it's about states. It allows Congress to say, we're going to regulate the states because we have an obligation under the Constitution to make sure they are Republican form, that they're not ruled based on an oligarchy of the skin. So often when we talk about partisan gerrymandering, there's an insistence, say, oh, we can look to the elections clause. That Allows Congress to regulate congressional elections. But the Guarantee clause is, you know, a really important supplement because it says, yes, you can get at the states. The other thing that's really important, you know, one of the things that we've seen in Shelby county, in Calais, the Supreme Court says, we're the masters of the Constitution, and if you have a different view, we're not going to pay it any respect. We saw that in Calais, we saw that in Shelby County. We saw that in a number of cases. The Supreme Court has disrespected a real structural feature of the Reconstruction Amendments, which is that they give enforcement power to Congress. Now, the Guarantee Clause has always been something that the courts have not dealt with. It's always been viewed as a political question. So if you're a plaintiff and you go to a court and say, I want to attack this practice as a violation of the guarantee Clause, the court will say, get out of here. That's a political question that's not fit for judicial resolution. You need to go elsewhere. And so there isn't the same body where the Supreme Court will say, oh, well, there are no promises before the Roberts court. But based on the past, there's a strong argument that, that this is a matter where congressional second guessing is particularly inappropriate. And Congress has really powerful tools to ensure that promise of republican government, which is a duty they have under the Constitution. You know, I wrote that piece because I was like, wow, you know, the black conventions not only help us see how badly Calais went wrong, but they help us see a potential remedy which is looking to the Guarantee Clause as a way to redress this toxic mix of partisan and racial gerrymandering that we're seeing through throughout the states.

[B]

David, I want to ask a question about originalism. All of the work of the black conventions was erased by American history, and then constitutional scholarship kind of privileged the judicial and scholarly accounts produced by elite white understandings of what had happened. So that there's almost two layers of whitewashing, if you will, going on here. One is, is that this is all gone. It's not even a part of a conversation about originalist meaning, but the part that survives gets filtered through white voices as though, and you write this, they're the only ones that mattered. I just would love your thoughts on the ways in which it seems profound, to say the least, that you have this extraordinary moment of black participation in constitutional meaning making that is then narrated for the history books, and that becomes, to the extent it becomes relevant in these conversations by privileged white men.

[C]

So the conventions Are there. And I think we can recover their history. And I think this idea of we look to original public meaning. I mean, there's something powerful in the idea of the public, because that includes all of us. We're all part of the public. And one of the things that I wanted to do in this piece to say black Americans were a really important part of the public. And that goes to sort of the way the press amplified and drew attention and, you know, in some cases praised, in some cases criticized them. But they mattered. Their views mattered. Their views mattered in Congress. Their petitions were entered in the record. There was dialogue between white Republicans and. And black activists who were always pushing for the broadest understanding of freedom and equal citizenship. And on some matters, they won. You sort of see over the course of Reconstruction, things that were initially dismissed as too radical ultimately then become vindicated. So the right to vote originally sort of viewed as too radical. They push for the 15th amendment. And to me, one of the things that was incredibly striking was you read the debates over the 15th Amendment, and White Republicans are saying exactly the same thing that the black conventions had said, which was that the right to vote is critical for their protection and freedom will be meaningless without it. The right to be on a jury, again, initially too radical. By the 1875 Civil Rights act, that's written into the law. The idea of getting rid of prejudicial exclusions in civil society, that's something that they're pushing from the start. By 1875, that becomes part of the law. So you see them shaping the amendments and how the amendments are understood in a huge way. And the biggest part is, without their votes, there's no 14th amendment, there's no 15th amendment. So when you think about who's part of the public and what is the original public meaning, the history says we need a broader lens that takes into account their views. We can't just say, oh, let's look at what elite whites thought. If we're going to look at original public meaning, we need a view that embraces the entire public. And if we are honest about history, they were a really critical part of the public. And I will say I think Justice Jackson is very interested and open to this. Last term, she specifically called for a broader and more inclusive constitutional history. She cited the South Carolina 1865 Black Convention that I talked about. So at least by some members of the Court, there's a recognition that those who are trying to say, oh, we're originalists, but we're kind of ignoring a key part of the public is just totally wrong and perverted.

[B]

David, that's such a gorgeous segue to my last question and really the reason we wanted to talk to you this week. As I said at the beginning, and you noted too, our friend and colleague Jamelle Bouie has really seized on some of these ideas and he cites you extensively in his piece in the New York Times to argue for a new founding and more urgently a way to get out from under the notion that the Supreme Court has a complete lock on, on making constitutional meaning. I think you referenced earlier in the conversation talking about Shelby county, that the court has just said we are the masters of the Constitution is what you said. And I think that what you're both trying to point to is a movement that is so much broader and more complicated than simply pack the court. It is a movement that says if we need another Reconstruction, if we need to rethink who makes constitutional meaning, that's not gonna be a thing that Ketanji Brown Jackson does on her own.

[C]

I think that's right. If you look at our constitutional history, a lot of the stories of amendments are kind of powered by social movements and people and activism and holding meetings and pushing new ideas and demanding constitutional change. So this story sort of starts with all the ways that the abolitionist movement said we don't accept the slaveholders Constitution. We have a new constitutional vision that we're going to fight for. And this moment that we're talking about during Reconstruction, you have black Americans pushing for the broadest and most muscular ideas of freedom and equal citizenship. And you have white Republicans in Congress who, who grew up in the abolitionist movement and the anti slavery movement and are influenced by their ideals. And many of the ideas that are in the abolitionist movement kind of then get reflected into the Reconstruction Amendments and they come out of this dialogue between Congressional Republicans and black freedom fighters. That's only the story of the Reconstruction Amendments. I think you can tell a similar story story how we got the 19th amendment. Obviously in many ways for many women's rights activists, the 14th Amendment was a disturbing failure. They hated the fact that the 14th Amendment in Section 2 added the word male to the Constitution. And that started another grassroots fight we've had throughout history many, many times where Congress isn't going to do the right thing on its own. There has to be press pressure and activism and the development of new ways of thinking. I think we can look at even in our time to see some of these things. So you can think of before Obergefell, all the ways that the marriage equality movement pushed for rights, both in court, but also through on the ground activism. You can sort of think about the Black Lives Matter movement that made us remember, remember that eradicating racial police violence is fundamental to freedom and to our constitutional order. And part of it is pushing for a Congress that sees its constitutional prerogatives and acts on them. And responding to rulings like Dobbs or Calais or Shelby county is one way into that. But obviously it's not the only one.

[B]

In the back of my head, as you've been talking the last couple of minutes, I've been thinking about that line from Hamilton about being in the room where it happens. Right. And I think all of the work you've done on the black conventions are such an important reminder that if you're locked out of the room where it happens, you kind of make your own room and make it happen. But it is an emphatically optimistic view of how change can be made. And I really do want to thank you for, for bringing this to our attention at a moment where sometimes it's too easy to forget all that. David Gans has been writing and thinking about progressive constitutionalism for two decades. He's director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability center, and he's an experienced constitutional litigator and scholar. The article that we have been discussing today is forthcoming in Stanford Law Review. It's called called Forgotten Black Conventions and the Second Founding. And I don't often say this about a law review, but I will say this is eminently readable and comprehensible, like, you do not have to be a lawyer to read this or understand it. So, David, thank you for joining us and thank you for your really, really important work, particularly in this moment.

[C]

Thanks so much, Daya. It means so much coming from.

[B]

And that is all for this episode. But Amicus plus members, I cannot wait to see you in the bonus where Mark Joseph Stern will join me to unpack more decisions from SCOTUS this week. It's a kind of jurisprudential unboxing, if you will. On today's Amicus plus bonus episode, we're going to talk about the separate opinions in that guns and weed case, Amani, and the extent to which the liberals have made their peace with Bruin's history and tradition test. Mark's also going to shine a light on the very interesting opinion from Justice Neil Gorsuch in another Case Hunter, in which, joined by Justices Sotomayor and Jackson, Gorsuch seems to come awfully close to saying that plea bargains are unconstitutional. Visit slate.com amicusplus to listen. By joining Slate plus, you support our work and you get loads of extra and ad free listening and paywall free [e-mail] youm can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. Thank you so much for listening. And thank you so much for your letters and your questions and your jokes. Keep them coming. We are reachable by [e-mail] you can always find find [e-mail] amicus podcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. Sara Burningham is Amicus Supervising Producer. Our producer is Sophie Summergrad. Hillary Fry is Slate's Editor in Chief, Susan Matthews is Executive editor, Mia Lobel is Executive Producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week. We have decisions coming down on Tuesday and Thursday, so buckle up and until then, take good care.

[A]

Still waiting in line again? That's time you'll never get back. Save time and money with stamps and over 4 million businesses have skipped the line with stamps.com join them to save up to 90% off carrier rates from your computer or phone right now. Print postage for certified mail, registered mail and packages in seconds. Then schedule a pickup right from your home or office for a limited time. Go to stamps.com and use code podcast for a free welcome gift. Taxes and fees apply. Is your kid's birthday coming up? Don't stress the prep the party Shop at Michael's is your one stop shop for everything from Bluey to Rodeo. Transform your space into a birthday wonderland with dream worthy tablescapes and decor starting at $0.99 plus get free helium inflation on select balloon styles. Whether you're crafting a one of a kind bash or grabbing the essentials, Michaels has everything to make their big day legendary. Shop now and order ahead for delivery or in store pickup. Michaels everything to celebrate anything.