By Stacey Patton:

In a few days, President-Elect Barack Obama will swear to “preserve, protect, and defend” the Constitution – the nation’s foundational document. As he does so, he will look across the National Mall toward Abraham Lincoln, an immortal giant who promised Americans a “new birth of freedom” in the midst of a civil war that divided the nation.

As this impending historic moment approaches, there are a plethora of events scheduled here in the District of Columbia that will revisit Lincoln’s deeds, words, and legacy to commemorate the 200th anniversary of his birth and to remind us of his vision for our nation as we move into the era of Obama.

I attended one such event, a program, titled “The Road From Lincoln to Obama: the Constitution and the New Birth of Freedom,” on Wednesday, January 14 at the National Press Club in the Northwest section of Washington D.C. Mary Frances Berry, Geraldine R. Segal Professor of American Social Thought and Professor of History, University of Pennsylvania and former chairperson of the United States Commission on Civil Rights, moderated a lively discussion with leading historians, constitutional law experts, and civil rights leaders about the history and legal aspects of the civil rights amendments to the Constitution.

The panel, representing the groups that co-sponsored the program, included John Payton, NAACP Legal Defense and Educational Fund (LDF) President and Director-Counsel; Doug Kendall, Founder and President of the Constitutional Accountability Center; John Trasviña; President and General Counsel of the Mexican-American Legal Defense and Educational Fund (MALDEF); and Eric Foner, DeWitt Clinton Professor of History at Columbia University.

“For what was the new birth of freedom that the emancipator Lincoln promised at Gettysburg?” David Lyle, acting Executive Director of the American Constitution Society, prefaced the discussion with this and other such questions as. “What is equality? What rights does our Constitution protect? And for whom?”

Obama will have to grapple with some of these old questions about the meaning and limits of liberty and equality as our democracy continues to broaden amidst current domestic and international crises. The panelists suggested that the new president begin with the text, history, structure and purpose of the 13th, 14th, and 15th Amendments to the Constitution.

Those “new birth amendments,” Lyle said, “transformed a document defiled by its embrace of racism and slavery into a character for freedom.”

Members of the panel discussed how the “new birth of freedom” that Lincoln spoke of over 146 years ago in his short but carefully-crafted speech at Gettysburg, Pennsylvania took shape in the Civil War Amendments. Their discussion focused more on how scholars, politicians and the courts have interpreted or misinterpreted the meanings and impact of those civil rights measures than on juxtaposing Lincoln and Obama.

“The election of Barack Obama provides an opportunity for us to talk about reclaiming the Constitution and understanding the importance of the [civil rights] Amendments,” said Berry.

Foner, who has authored critical articles and a widely-acclaimed book reconsidering the failures and progress of the Reconstruction era, said “There’s a lot of baloney floating around about Lincoln,” and emphasized the importance of beginning the discussion about the current state of our Constitution and its amendments with Lincoln. “Out of a great crisis, a new Constitution emerged,” he said. “Lincoln said, we must ‘disenthrall ourselves.’ And today, politicians and the courts must disenthrall themselves by abandoning old ideas and think anew. We must think of equality beyond race.”

Lincoln and his contemporaries had to struggle with how to create an American society “unbounded by the tyranny of race,” Foner explained.

As Foner argued, the Founding Fathers did not create an equal society beyond race. Instead, they created a slave-based society that ultimately had to be destroyed so that the nation could progress. After slavery’s demise, Congress left the language of the Reconstruction amendments opened ended.

Foner said that Congress wrote into the Constitution a set of general and vague principles with the expectation that future members of the Congress and courts would breathe meaning into them. But the courts and politicians ignored the rights of African Americans. Ultimately, the North and South reconciled at the expense, or as the great historian Rayford Logan put it, “the betrayal of the Negro.”

Still, the Reconstruction period was a time of “hope and progress,” Foner said, “the first effort to give life and meaning to these amendments.” He urged the Supreme Court to learn the new history of the era so that they can apply those civil rights amendments in the spirit in which they were created.

“Reconstruction didn’t fail,” Payton said. “It was destroyed.”

Payton discussed what historians call the historiography of the Reconstruction era.  The historiography isn’t the history of the events that happened, the story that historians tell about what happened. Oftentimes that story can be fraught with lies and other agendas. And that story also reveals a great deal about the mindset of the generation telling the story.

Payton cited earlier historical interpretations of the period, particularly the William Dunning racist school of thought, which argued that blacks were to blame for the overthrow of Reconstruction because they were corrupt, inferior and a menacing criminal element unworthy of citizenship rights and protections.

“Historians have revised this history, but the courts haven’t,” said Payton. Sharing the words of LDF founder and former director-counsel Thurgood Marshall, Payton said, “While the Union survived the Civil War, the Constitution did not.”

Instead, what followed the Reconstruction period was an assault on the rights and protections of African Americans that were supposed to be secured by the civil rights amendments. Payton lamented the contemporary parade of court cases that cite Reconstruction-era cases wedded to that period of betrayal of African Americans.

Kendall echoed Payton saying, “Americans do believe in a certain set of inalienable rights. This is the basic idea of America. But the idea of liberty has been written out of the Constitution.”

Foner concluded his thoughts by saying that “There never is a final word on history, [but] today judges are trapped in an old view of Reconstruction, which was [the] foundation for Jim Crow.”

Trasviña also encouraged the audience and panel to include immigrants into the discussion about liberty and equality. “Talking about cases from 150 years ago is critically important to restoring the Constitution and protecting ‘peoples’ rights,” he said.  “It is an unfinished fight.”

The panel members agreed that the framers of the Constitution and Reconstruction amendments understood that democracy expands and changes over time; thus, the Constitution is, as Berry said, “a living document,” and not some text frozen in time.

Berry urged that all levels of our society, we all need to learn the history of its words and meaning, not to repeat old behaviors, like excluding marginalized groups, but to understand its principles and how the meaning of citizenship changes over time.

Drawing chuckles from the audience with her final observation, Berry said, “First we learn the history. And then Obama’s got to get some new judges and we can finally turn things around.”

Stacey Patton is Senior Editor and Writer for TheDefendersOnline