The Lawfare Podcast: ‘Democracy Awakening’ with Heather Cox Richardson

Heather Cox Richardson: One of the reasons we're in a unique place today is that I'm not the only person who can look at the weak spots in American democracy and say, "Oh, look, we've got a problem." And it's a problem that can be exploited by people who are trying to destroy our country. And we can see this right now in the lead up to the 2024 election, the amount of disinformation that's coming from bad actors. People like Russia, in the case of the article that I'm mentioning, or Iran, or China, people who are deliberately trying to tear apart an American population that every poll will show you is actually highly united on most of the issues that we consider hot button issues. So, for example, there was a recent poll, a very recent poll about, whether or not Americans support reproductive rights, and 69 percent of Americans want to see Roe v. Wade reinstated. That's not a controversial idea. Similarly, huge numbers of Americans, over 70%, want common sense gun laws. The things that are presented to us as highly divisive are, in fact, not highly divisive. They're being exploited by people who are trying to convince us that we are not a united people and that our country is in real trouble.

Anna Hickey: I'm Anna Hickey, Associate Editor of Communications for Lawfare, and this is the Lawfare Podcast, January 25th, 2024.

Heather Cox Richardson is the author of the book, Democracy Awakening: Notes on the State of America, which looks at the evolution of American democracy and traces the roots of Donald Trump's authoritarian experiment to the earliest days of the Republic. I sat down with Richardson to discuss the state of American democracy today, the historical context we should use to understand the current threats to democracy, and what we can learn from previous periods of American history. It's the Lawfare Podcast, January 25th: Democracy Awakening with Heather Cox Richardson.

Today you're here to talk about your book, Democracy Awakening, and your book starts by saying that today's crisis began in the 1930s, which saw the rise of authoritarianism both abroad and domestically. How have you viewed the rise of fascism or authoritarianism in the United States fitting within the rise of global authoritarianism both in the present and in the past?

Heather Cox Richardson: Well, it's important to remember that the reason I began that book with 1937 was because the book was designed to be a series of essays that explained the answers to questions that people ask me every day. "Like, how do the parties switch sides? And, do we live in a democracy or in a republic?" Those sorts of questions. But, I realized quickly that the question that people ask me most often is, how did we get to this point in the United States? What does it mean to be here and how do we get out?

So I picked 1937 to begin the book because that's the date in which racist Southern Democrats tried to join together with pro-business Republicans to stand against the New Deal. And they, at the time, wrote a document called the Conservative Manifesto. It really never went anywhere as a document that was able to break the New Deal coalition, but it did get spread really widely across the United States through chambers of commerce. And so I identified that and the principles in that as the beginning of the destruction of what became known as the liberal consensus.

Now, the reason I just told you all that is because my understanding of the rise of authoritarianism is not necessarily rooted in the 1930s in the same way that's rooted in the 1930s in Europe. Because one of the points I tried to make about American authoritarianism was that it's very easy to look at, for example, the rise of Mussolini in the 1920s and the ideals of somebody like him and how they got picked up and used by Adolf Hitler in Germany, and to think, "Oh, America only has to look back to the 1920s and the 1930s and not really worry about what happened before that." and one of the points I wanted to make was that if you look, for example, at the legal system that Hitler put in place, his lawyers literally looked to the United States for laws on how a system could exclude Black Americans and brown Americans. The Jim Crow laws and the Juan Crow laws. And they literally looked to the indigenous reservations, especially those in the American West, to look at how a society could cordon off certain groups of people.

So, that idea, that some people are better than others and have the right and maybe the duty to rule, has always been a thread in the United States and goes way back before the 1930s. Now since then, of course, there have been different flavors of authoritarianism or fascism coming to the United States and cros-pollinating with places like Europe. But, our stance on authoritarianism reaches all the way back to the first anchor that was ever dropped off North America by Europeans.

Anna Hickey: Thinking about how this authoritarianism strain has really existed for a lot of American history, your book is kind of segmented into three parts. And I was wondering, thinking about how the first section talks about the crises that existed kind of within the 20th century, and then the third section talks about the hopefulness of looking forward and looking to the back in the Reconstruction era, why did you decide to segment your book like that? And, additionally, how did thinking about those specific time periods impact how you viewed American democracy?

Heather Cox Richardson: Well, as I said, I was really trying to answer the question that people ask me every single day. "How did we get here? What does it mean to be here? And how do we get out?" So, it never occurred to me to write up that book in any other way than to start with the period in which a group of pro-business Republicans worked together with racist and sexist Southern Democrats to try and tear apart the New Deal coalition that was so powerful from 1933 to 1981. And the roots of that are in that first Conservative Manifesto of 1937, in which those people trying to destroy the New Deal consensus took on its four pillars: the idea that the government had a role to play regulating business, it had a role to play in providing a basic social safety net like social security insurance, it had a role to play in promoting infrastructure, and it had a role to play in civil rights.

Well, the Conservative Manifesto took on all four of those pillars saying, "Absolutely no. The government does not have a role in regulating business because that inhibits a man's ability to concentrate his wealth and to run his business as he wishes. No social. A basic social safety net belongs to the churches and if the government gets involved in that, it's going to be expensive and it's going to cost tax dollars, which are ,again, going to inhibit a man's ability to concentrate his wealth and run his business as he wants. It should not get involved in infrastructure because that should belong to private industry and it certainly should not get involved in civil rights." and, of course, those are the pillars on which the modern right wing movement is advancing its cause in 2024. So, that thread is what ran through that first section of the book.

The second section, though, I think, explains something important for Americans to understand today. And that is that although former President Trump inherited that rhetoric from the Republican Party in 2015, 2016, as he was rising as a political figure, he changed it during his term, especially after the Unite the Right rally in Charlottesville, Virginia in 2017, by turning that rhetoric and those people who voted for that rhetoric into a movement. And that's where there's a lot of overlap between the United States in the early 21st century and Europe in the 1930s. Because one of the things that Trump did was very much like what happened in the rise of fascism in Europe in that period, and that is to take street gangs. And the United States has always had street gangs of one sort or another.

Taking those street gangs and getting them to work together over some issue that was right in front of them at the time, like mask mandates, for example, or some reason that they felt that they had a beef with their state governments or sometimes their federal government. And what he recognized is that once you have radicalized people by getting them to join gangs and to feel supported in those gangs, they're very easy to radicalize behind an authoritarian. And this is a lesson that came to the United States from Europe in the 1930s. And he welded them into a movement. So, what you have now in our political system is the rhetoric that the Republicans had built after really the 1950s, and came to take over the Republican party, propelled Donald Trump into the presidency.

But when he was in the presidency, he turned that rhetoric into a movement and it has become an authoritarian movement that does not have precedent in our history at all. So, then one of the other things I was trying to do, of course, in the book was to explain how we can reclaim American democracy, both the stories from our past and the language of our past, to propel us into a very different future.

Anna Hickey: And thinking about how, while he was president, former President Trump used rhetoric to encourage these kind of street gangs and violent people in the streets, something that brings, at least to my mind, is the January 6th insurrection at the Capitol. When you were thinking about this book, did January 6th influence how you began to think about this book, or were you already pretty well into thinking about it by the time January 6th happened?

Heather Cox Richardson: Oh heavens no, I hadn't begun it then. January 6th was very, very important to the United States for everything that we all talk about. It was very important for me because I am a scholar of the 19th century and I recognize just how vitally important it was in our history that the Confederate battle flag had never flown in the U.S. Capitol. And when Donald Trump's supporters brought that flag into the U. S. Capitol, that was more than just some random flag, or it was more than just some dude with his chest painted. The flying of a flag that stood for a government that was designed to put into place the idea that some people are better than others and that we do not all have a right to have a say in our government, was a really profound attack on America's principles.

So, it was an important moment for me in that sense. But, as a larger story, what Democracy Awakening is designed to do is to take a larger look, first of all, at where we are in the United States and how we can get out of this moment, but also, at the way authoritarians rise. And one of the things that is crucially important to the rise of authoritarians is their use of language. So, what the book argues is that it is by first dividing the liberal consensus and then consolidating power based on language, we have come to a place where authoritarians threaten American democracy. But also, authoritarians use a certain kind of history in which they reach back to the idea of a perfect past, and a perfect past that we could return to, they promise their supporters, if only we put in power somebody who doesn't have to worry about silly little things like laws and rights, that they are able to use language and history to cement the idea of authoritarianism. So that larger story really, January 6th plays into that, but it is not the heart of why we are here. It's a symptom more than a cause.

Anna Hickey: And so thinking about January 6th as a symptom and not a cause, obviously we have to treat the cause in order to lessen the effects of the symptoms. When I was reading the third part of the book, I found it, very hopeful, looking at the times after the Civil War and the period reconstruction running after that when people, especially people who weren't white men, were fighting to increase the democratic values of America. When you were writing that section, how did you view how that period of history kind of related to our current time, and, specifically, what lessons we can learn from that?

Heather Cox Richardson: Well, the third section of the book is a how to manual for recovering democracy if it has been lost. So, each chapter is designed to talk about, for example, how people can come together and use communications networks to spread the concepts of democracy; how people who are marginalized can use that language to insist on being included; how people who are being excluded from the voting population can demonstrate their fitness through art, through educational attainment, through all sorts of different ways in which they are able to claim a place, even if the people in power insist that they don't have a place.

So, there are a number of things that are in that third section. But, I'm actually going to say something different than I expect that you think I'm going to. And that is that one of the things that really jumps out for me about Reconstruction that I think people miss about it, and that is that for all of the horrors of it, for all of the fact that Black Americans are being lynched and they're being kept from the vote as are brown Americans and immigrants. For all the horrors that happened during Reconstruction, it is also an incredibly vibrant period. We have hundreds of Black newspapers. We have people, Indigenous Americans, coming to Congress and saying, "What are you guys doing out here?" We have people writing books from all across the country, from all sorts of different perspectives. We have Chinese Americans showing up in the newspapers saying, "Hey, wait a minute here, what's with this Chinese Exclusion Act?' And that vibrancy, both of political language, but also of art and literature and clothing and new ideas and innovations, makes it an incredibly vibrant time, a time of great innovation and a time of great possibility.

And one of the things that I think people miss nowadays when they are frightened about what's happening--and heaven knows we should be frightened--is the fact that all the new voices we're hearing, all the new music, all the new art forms, all the new ways of looking at organizing the economy, for example, all the new approaches to climate change, those are times in which we are sort of throwing all the cards up in the air and what comes down really depends on what we, the people, decide what we want to have the next version of our country be. So, funnily enough, although there are many parallels I could talk about--about voter suppression and gerrymandering and, and the attempt of a minority to take power over a majority--that echo reconstruction in the present, one of the things that I hope people see is just how exciting a period it is when you do throw the cards up and when you have a chance to determine how they come down.

Anna Hickey: And then thinking about what happened after Reconstruction, something that I noticed in your book, it almost reads kind of like a cycle. At least, that's how I read it, because the book kind of ends thinking about the lessons we can learn from all of these people who really fought during a hard time, and then it starts, 40, 50 years after that in the 1930s.

So, just thinking about the cycles of American democracy, is there anything specific--like, is that how you kind of met the book to read as a cycle? Or was that something that I'm reading into it that wasn't necessarily there? Do you view American democracy and the democratic deficit to resurgence as a cycle in America?

Heather Cox Richardson: So, I wrote a book about the history of the Republican Party that argued it was a pendulum, that the ideology of the party made it swing back and forth between using the government to support ordinary Americans, through a process to where it swung at the other end, where the party used the government to support the very wealthy businessmen.

So, I have in the past, certainly advanced the idea that there are patterns in American history. I don't like the idea of cycles because it implies that we have to go through these things. I think the United States with its unique pattern of an intense struggle between the idea of equality and the idea of property, which has usually allied with the idea that some people are better than others, combined with its history of a multicultural society that is both racist and sexist, has meant that we do have patterns.

But we don't have to be wedded to those patterns. One of the things that I keep trying to do is emphasize that there are patterns we can see. There are very clear ways in which people who are trying to destroy democracy have always reached back to certain arguments. And once you recognize those arguments, you can defang them.

Now, one of the things that's interesting about the moment we're in--and I kind of want to bring it back to a piece that was in Lawfare yesterday about the importance of disinformation. Especially, in that case, the piece was about disinformation coming from Russia. But one of the reasons we're in a unique place today is that I'm not the only person who can look at the weak spots in American democracy and say, "Oh, look, we've got a problem." And it's a problem that can be exploited by people who are trying to destroy our country. And we can see this right now in the lead up to the 2024 election, the amount of disinformation that's coming from bad actors, people like, Russia, in the case of the article that I'm mentioning. Or Iran or China. People who are deliberately trying to tear apart an American population that every poll will show you is actually highly united on most of the issues that we consider hot-button issues. So, for example, there was a recent poll, a very recent poll, about whether or not Americans support reproductive rights, and 69 percent of Americans want to see Roe v. Wade reinstated. That's not a controversial idea. Similarly, huge numbers of Americans, over 70%, want common sense gun laws.

The things that are presented to us as highly divisive, are, in fact, not highly divisive. They're being exploited by people who are trying to convince us that we are not a united people and that our country is in real trouble. And one of the things that I would like to see us do is recognize how easily those pressure points can be exploited, have been exploited in our history, and how we need to be able to recognize them and shunt them off to the side, in a way that I think a lot of people are not aware of.

Anna Hickey: And thinking about misinformation, I feel like that kind of ties into the part of your book that talks a lot about language, and the importance of language, and talking about parts of our history in an accurate fashion. And something that always makes me think of is the Dunning School of History, which came to fruition after Reconstruction to kind of restructure how Americans thought about Reconstruction. Or the John Birch Society, which kind of emphasized certain points of American history. So thinking about those, do you see any parts of American--

Heather Cox Richardson: That's one way to talk about the John Birch Society.

Anna Hickey: Certainly one way. But thinking about how people have used or contorted American history, or contorted language to talk about American history in America today, do you see any similarities between what is happening right now that could then lead to this sort of misinformation and disinformation?

Heather Cox Richardson: Yes, but, I'm going to go all historian on you here and split a hair. And that is that the Dunning School, for example, which was a historical school, unlike the John Birch Society, which is a political movement, took our past and slanted it so it told a story that was not true. So the Dunning School, and many of the schools that came out of the Reconstruction period, destroy the concept that Black rights were important to American society. And they begin to argue that letting African American men vote--because women couldn't vote at that time--letting African American men vote meant that they would use their vote to demand public projects like schools and roads and hospitals, and that would cost white tax dollars.

So essentially, what Black voting meant to historians like those in the Dunning School, was that Black political rights meant a redistribution of wealth from white people to Black people through tax dollars, which was absolutely the political project of former Confederates in the 1870s. So, they're using history to sort of try and make an academic argument that says the opposite of what actually happened.

But that's actually a little different than what's going on nowadays, in which we have on the right, a political party that is trying to argue that there was a perfect past. Not that there was a past of struggle, in which minorities were the bad guys, which is really what Dunning is arguing. But, that the past was perfect and we need to get back to that. So, for example, if you read the 1776 Project's report from the the Trump administration, they talk a lot about how America's always been this great country. It's always been wedded to civil rights. And on the occasions when there might have been something unpleasant happening--and that's not a quote, but that's certainly the feeling one gets from it--that was only because there were a few bad apples. And most Americans were really just just ducky and they didn't want to cause any trouble for minorities. They always welcomed minorities with open arms. And so, you read this thing and you're like, "Tulsa race massacre, anybody? Enslavement?" And the creation of a perfect past that rejects the idea of any struggle and simply says, "Hey, everything would be fine if we could just shut up the people who were complaining." That's actually slightly different than saying, "The history that you understand is wrong and here's a different version of it."

Now, at the same time, there is also the critique of American history in the present that says, "We've never had a democracy. And because of the sexism and racism that has been built into our country from the beginning, American democracy has never really been viable and we need to try a different approach to society." And I disagree with that. I actually think that is problematic as well. And one of the points I was trying to make in the book was that American democracy has certainly never achieved the promise that it laid out in the very beginning, but, it has continually broadened and it is continually broadened because of the efforts of marginalized individuals and marginalized groups. And my problem with the idea of throwing out democracy and trying something else is that I have yet to see an alternative vision of of politics in any society, in which whatever replaced democracy was better. In fact, it always seems to me that when you get rid of a democracy, you replace it with some form of authoritarianism, whether it's on the right or on the left. And I really have no interest in either one of those things.

So, again, one of the things I was trying to do was to marry the idea that marginalized Americans have always been central to American history with the idea that America should be and can be a nation that honors the principles of the Declaration of Independence--even though, of course, that was written by white propertied men, many of whom were enslavers--the principles that we can, in fact, have a nation in which people are treated equally before the law, and have a right to a say in their government. But, in order to have that, in order to reclaim that, it's going to take some work.

Anna Hickey: And now, switching gears just a little bit, you also, in addition to this fantastic book that you wrote, have a nearly daily newsletter that tries to explain the news of today using the history and contextualizing what's going on. Sometime recently, your newsletter mentioned the Polish elections and thinking about how the recent-- looking at authoritarianism in Europe, might be a way to think about how there's authoritarianism in America today. I was wondering, as you write your newsletters, how do you think about tying in what's going on in America today with what's going on around the world and what's going on in the past? What's your thought process in that?

Heather Cox Richardson: Well, it's important to remember that when I'm writing the letters from an American, I'm wearing two hats really, but, both of them fall under the profession of historian. So, on the one hand, I am trying to explain to people the bigger picture of what's happening. And it's important to remember I'm not a journalist. I'm a historian. So, journalists tell you what's happened. They give you scoops. They try and say, "Here's something you may not have looked at. Here's more information about what's happening in the world today." Historians look at that evidence and we do something very different with it. We look at it and we try and see the patterns that support change in society. So we're interested in, as historians, we are interested in what changes society. So, on the one hand, I'm trying to explain to people what's happening, but, on the other hand, what I'm really trying to do is leave a record for somebody in 150 years of what were the pieces of things that happened today that changed our society.

And one of my examples of that recently is that I never covered the Republican primary debates because I looked at them and I said, "Trump's a fron-runner." And until that changes, these debates are not going to change history. If I'm writing a book about this in 150 years, I'm not going to mention the primary debates. But, on one of the days of the primary debates, President Joe Biden and Shawn Fain, who's the president of the United Auto Workers, cut about a 30-second or a one minute video that they put on social media in which they praised each other. I covered that because Biden's relationship to the changing labor movement has been somewhat unstable. It was not clear if the new labor movement that has been emergin--and Shawn Fain being one of the great representatives of that movement--would in fact sign on to the Biden presidency. So the fact that in that moment--and of course, I don't believe they have formally endorsed Biden in 2024--but the fact that after negotiating three contracts with the major auto producers, that the head of the UAW would cut a video with the President of the United States, who was of course the first president to stand on a picket line, that was a really big deal to me. And it was not something that necessarily showed up elsewhere. Because what I was interested in is not, this happened, this happened, this happened, but, rather, if I'm trying to figure out what's changing society right now, it looks to me like a short social media clip between the President and the President of the United Auto Workers, that's a big deal. It's going to change society. So that's how I try and figure out what's going to happen.

I will also say I read very, very widely and I have a number of people who send things to me that I would not otherwise see and I'm partly just a magpie. I'm interested in things that look interesting to me that seem to me to tell stories that are not necessarily getting attention that they ought to. So one of the things that I'm very interested in, and one of the reasons that I play around as widely as I do in what I read, is I'm very interested now in foreign affairs, and recognize that there's not the coverage of that that it seems to me that there ought to be in the United States. So, you mentioned in the beginning of this interview that I did talk about what happened with the rise of authoritarianism in the former Soviet republics after the fall of the USSR in the early 1990s. And I got into that material and I thought, how on earth don't we all know this? I mean, the fact that the people who were in charge of former Soviet republics needed to launder their money somewhere or, at the very least, park their money somewhere, and poured it into the U.K. and into the United States, and the United States became the money laundering capital of the world. That seems to me like stuff people should know. And so partly I'm just a magpie saying, again, "If I'm looking back at this moment and trying to explain it in 150 years, what are the pieces that will seem to me to be important?" And so it's a little bit of a different look at the present than a journalist would do.

Anna Hickey: And then thinking about patterns that as a historian you recognize as important and repeating, in American democracy today if you could pinpoint one decade that you would say these patterns are most similar, do you have any? Or, is what's going on right now so unique to the specific point in history that there's not a great comparison?

Heather Cox Richardson: I'm sorry, you mean by looking at where we are now, what does it look most like to me?

Anna Hickey: Yeah, if you were, as a historian, were going to say the patterns going on in American society today match with X decade, or is that not exactly one-to-one because of so many changes in American politics?

Heather Cox Richardson: Well, it's never one-to-one. Any historian will tell you that. But, of course, we've talked about Reconstruction and the suppression of the vote, for example. But, the decade that always jumps out to me is the 1850s. And that's because in the 1850s, we had a very similar pattern of a small minority trying to take over our federal system to determine the future of the country and to destroy democracy. And that's really clear how the elite Southern enslavers--and that's the people who, the very small, about less than 1 percent of the population--managed to first control the Democratic Party, and then through the Democratic Party to take control of the Senate, the Supreme Court and the presidency. And that process was gradual and a lot of people didn't really pay a lot of attention to it. They were busy with the transportation revolution, for example, and with the growing economy across the American North and to some degree the American South. And then, of course, they were paying attention to the incredible boom in land values and in cotton values in the American South 1840s and the 1850s. And they really weren't paying a great deal of attention to what was happening in the government, because they really thought that democracy had been protected--or at least what they thought of as democracy was so deeply rooted in the country that it really wasn't going to go anywhere.

But, the reason that I went at length on about that was because what happened was in 1854, the elite Southern enslavers overreached, and they were desperate to bring their economic system of human enslavement into the American West for many reasons that I won't go into now. But, they overturned, through the House of Representatives, the Missouri Compromise, which had protected most, at the time of the American, for free labor since 1820. And when they did that, a number of Americans who had not really been paying close attention to what had been happening sort of woke up and said, "Now, wait a minute here. We don't agree with each other on transportation and we don't agree with each other over financial policy or over internal improvements or over immigration, but, we can understand that we must work together in order to push back against the people who are trying to turn our democracy into an oligarchy." And if anybody's interested, you can do a search of speeches like Charles Sumner's, The Crime Against Kansas in 1856 for the word oligarchy, and you see it comes up again and again and again and again. And when they did that, when they recognized that they had to work together to push back against this small group of elite enslavers who were trying to turn the country into an oligarchy instead of into a democracy, they managed to do it and they managed to do it really pretty quickly.

By 1856--the first law I'm talking about was 1854--and in 1856 you had the formation and the increasing power of the Republican Party. By 1859, Abraham Lincoln, who was a lawyer in Illinois, has articulated a new concept of American government, that it should not simply work to protect property the way the enslavers said, but instead, it should work for ordinary Americans, making sure they had access to resources, including education. By 1860, Lincoln's followers had elected him to the White House. By 1863, he had signed the Emancipation Proclamation, ending human enslavement in the areas that were still controlled by those elite enslavers. And by November of 1863, he had rededicated the nation to a new birth of freedom, based in a government of the people, by the people, and for the people. By 1865, we had the 13th Amendment, getting rid of human enslavement, except as punishment for a crime. And by 1868, we had the 14th Amendment, which said that no state could discriminate against any American citizen within its borders.

So, for all the fact that in this moment, we look at the, the sort of frightening rise of a small minority that's trying to control the rest of us. We also have in the 1850s, the pattern before us of ordinary Americans coming together and saying, "Hey, listen, we may not agree about a lot of stuff, but we can certainly agree that we don't want to turn the power of our democracy over to those people who think that they are the ones who have the right to rule and to take away our right to be treated equally before the law and to have a right to a say in our government." So, when I think of what this moment looks like, I always think about the 1850s.

Anna Hickey: I myself have found that I've gotten incredibly into Reconstruction in the past five years with everything that has happened, and have found that the 14th Amendment specifically is something that not only have I been thinking a lot about, but, I think in the past few months, Americans have been thinking a lot about. Has the use of the 14th Amendment and the way people talk about it surprised you in the past couple years? It feels like previously the 14th Amendment had been one of the sleeper amendments that most people who aren't historians or deeply into Reconstruction didn't talk about. It wasn't one of the Bill of Rights. But, now, especially with Section 3 of the 14th Amendment being used to possibly disqualify former President Trump from the ballot, it seems like it's part of a larger conversation. Has that surprised you at all, that the 14th Amendment has been talked about more? Or do you have any thoughts on Section 3 of the 14th Amendment and its use against former President Trump?

Heather Cox Richardson: Well, let's start with Section 3. As a historian, Reconstruction's, my heartbeat. There's no doubt that this is exactly what the people who wrote the 14th Amendment intended, was they intended for somebody like Trump not to be able to hold office. That's not debatable. But that's the historical take on it. There is, of course, a very different legal take on it, and that's what we're fighting about now. So there's the answer to the third section question.

But, in answer to your question about whether or not I'm surprised about the attention that the 14th is getting now, I will actually say something quite different. And that's that I am surprised at how little attention the 14th has gotten for a while now, when you think about the fact it is the 14th amendment that really gets resurrected by the Supreme Court after World War II to justify the expansion of federal protection of civil rights in the states. That's what the 14th Amendment does. It literally--it was written in 1866, it's passed and put into the Constitution in '68. But, it's written in '66 after the southern states essentially remand the Black people within their state lines to a form of quasi slavery. And back in Congress, the Republicans look at this and they're like, "It ain't happening on our watch." And what they do to override those state laws--those were known as Black codes, by the way. They do a number of things. And they're not the same as the Jim Crow laws, which is something different altogether. What they do is they write the 14th Amendment and they try to say, "Okay, we're done here with this idea that you have states' rights and you can treat people within your states however you wish." So in the very first section of the 14th Amendment, you have the protection of American citizens, of the equal protection of the laws. Okay, so we all have to be equal before the law. So the equal protection of the laws, you can't have one law for white people and another law for Black people. Equal protection of the laws and due process. So you can't simply throw people in jail. You have to go ahead and work through whether or not they have committed the kinds of crimes that would result in them losing rights. Which is why I'm always careful to say the 13th Amendment continues enslavement, except as punishment for crime, because of course that was a hole that a cart and horse could drive through.

But, that protection of people within the states becomes the underpinning for Brown v. Board of Education and so many of our civil rights from that point on. Griswold v. Connecticut, Roe v. Wade. The expansion of our democracy to include all Americans in the idea of the equal protection of the laws. And so the fact that that ceased to be talked about in the period after 1980, really, when there is an attempt among those people who call themselves "originalists", that is, to look at the original Constitution to push back against it, I thought itself was a sign that instead of focusing on the 14th, which empowers the federal government, to protect civil rights--and remember, of course, that the 13th, 14th, and 15th Amendments are the first amendments in the Constitution that give power to the federal government, rather than taking it away. In each of those laws, there is a section that gives Congress the power to enforce the this amendment. I thought the fact that it was not talked about was a much bigger deal because you can't really talk about the original Constitution and what that original Constitution means without talking about the 14th, which is of course part of the Constitution.

So, the rise to the Supreme Court of Ketanji Brown Jackson, I thought was a very important moment because she is somebody who's been pushing back on the originalists and saying, "Okay, you want to talk about original meaning, let's look at this 14th and see what the 14th is all about." So I'm hoping that the interest in the third section of the 14th is going to resurrect interest in the 14th itself. And all the things that it did quite deliberately during Reconstruction to make sure we didn't have, in the future a group of people in power in the states who were taking away rights within them, which is of course exactly what we're looking at in this moment now over issues like the Dobbs decision and what that means for reproductive health care and the right to abortion within certain states.

Anna Hickey: To close out today's interview, do you have any final thoughts on American democracy, or would you be willing to make any predictions on how you view American democracy and how it will continue to change over the next few years?

Heather Cox Richardson: Well, historians don't do predictions because we're prophets of the past and not the future. But, I will say this, which is not really a prediction about American democracy because I'm very concerned. I'm not concerned about a free and fair vote, in which I think Americans would defend equal rights and would defend the right for people to have a say in their society. I am concerned about the degree to which the radical right has sewn up what I call the "nodes" of American democracy, the various ways in which a 2024 election could be manipulated to put, for example, somebody like Donald Trump in power through the 12th amendment, for example. So there are definitely concerns out there.

But, I was thinking the other day about the way people talk about this country. And it seems to me it comes down to whether or not you have faith in people or you don't. Do you have faith that ordinary Americans will make good decisions or not? And I certainly know a lot of people in whom I don't necessarily have a lot of faith in. I think we probably all do, but at the end of the day, I think people are basically good and people basically make good decisions taken as a whole. So, I think at the end of the--it's not really a prediction, but, I think my faith is on the side of those people who want to protect American democracy rather than those people who are trying so hard every day these days to destroy it.

Anna Hickey: And I think we'll leave it there. Thank you so much for joining us today.

Heather Cox Richardson: Thank you for having me.

Anna Hickey: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website at lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts.

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