On Gendering the Constitution

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John A Bingham, photo by Mathew Brady, Library of Congress
Question

Do you have any primary source documents from John Bingham that show why he chose to include only males in the 14th Amendment, any copies of speeches he made on the topic, etc.? Also do you have any source documents from Susan B. Anthony that take the opposite view of why women should be included? My daughter is completing a National History Day project and these two are critical to her performance.

Answer

I’m not sure how to answer this. I wouldn’t want to take anything away from your daughter’s project by doing her research for her. But the subject is complicated and I think I can say a few things that might help with her research.

The issues around the passage of the 14th Amendment, as they appeared to women’s rights activists, are well covered, with transcripts of Congressional debates, and details of the petitions and organizing activities of Susan B. Anthony, Elizabeth Cady Stanton, and others, in the History of Woman Suffrage, Volume 2, Chapter 17, pages 90-151, which your daughter can read at the link. In addition, if your public library, or a nearby academic library, has online access to the ProQuest historical newspapers collection, she might find it useful to take a look at The New York Times reporting on the announcement of—and speeches given at—the 11th National Woman’s Rights Convention, held in New York City, as detailed in the articles, “Woman’s Rights. The Eleventh National Woman’s Rights Convention” (April 2, 1866) and “The May Anniversaries” (May 11, 1866).

The Purpose of the 14th Amendment

In order to supplement these sources and to more fully understand the Congressional debates over the language of the 14th Amendment, I think it is important to note that the essential purpose of the amendment was not to define the principle on which the right of suffrage was based, but rather to craft a means by which the country could be “reconstructed,” which is to say that the joint House and Senate “Committee of Fifteen” (which included Representative John A. Bingham of Ohio) that put together the language of the amendment and brought it to the Congress as a whole for a vote was recommending a way for the southern states that had seceded to be re-admitted to the Union, a very urgent issue at the time.

When they were re-admitted, these states’ representatives would have to be seated in Congress. But there was a problem with doing that: According to the Constitution, the number of slaves in the southern states had figured into the counting of the states’ population for the purpose of deciding the number of Congressional representatives from those states (the “three-fifths clause”). But with the end of the war and the passage of the 13th Amendment outlawing slavery, there were no longer any slaves to count.

it would have seemed that the South had actually been rewarded as a result of the war.

If, then, the sheer number of persons living in the southern states were now to be used to determine the number of representatives these states could send to Congress, these states would gain a very considerable advantage over what they had before the war because the ex-slaves would then be counted as “full” persons, even though, in these states, they were not allowed to vote. The result would be an actual increase in the legislative power of these states, whose strengthened congressional delegations would still be drawn from the same class of white landowners whose “retrograde” views had played a decisive role in the events leading to the war. This would have been plainly unacceptable, as it would have seemed that the South had actually been rewarded as a result of the war.

To solve this problem, the Committee of Fifteen created a condition for these states re-admittance to the Union, which is described in section 2 of the constitutional amendment it proposed:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

In other words, the committee was saying, “Okay, maybe we can’t force you southern states to give Blacks the vote, but if you don’t, we’ll just deduct the Black population from your total population when counting how many congressional representatives you get, so you don’t get any advantage over us; in fact, you’ll be disadvantaged, because now you won’t be able to count your Black population at all whereas before you could count three-fifths of it (more or less) in figuring out how many congressional representatives you could have.” This seemed like a fair, if somewhat convoluted, compromise to the committee. The committee thought it would stand a good chance of being passed.

This seemed like a fair, if somewhat convoluted, compromise to the committee.

In fact, essentially the same sort of scheme had already passed Congress as part of a civil rights law, but Congressman Bingham, who was both a lawyer and a judge, was convinced that that law would be found by the courts to be unconstitutional for a number of reasons (including the fact that it infringed on the rights of states to determine which of its citizens could vote), so he had actually opposed its passage in Congress and argued that it needed to be passed as a constitutional amendment instead. That is why it was deliberated on by the Committee of Fifteen—actually called the Committee on Reconstruction—of which he was an influential member, and was proposed by it. It was part of the committee’s plan for how the southern states could be brought back into the fold: If these states’ legislatures reaffirmed their allegiance to the United States and voted to accept the conditions in the proposed amendment, then they would be re-admitted.

I cannot find a source that gives Bingham himself the responsibility for inserting the word “male” in the language of the amendment. Perhaps you have found such a source. The material in the History of Woman Suffrage appear to me to suggest otherwise, that it was simply the result of the committee’s long hours in trying to craft precise language that would do no more than what the committee intended the amendment to do, without inadvertently opening the door to a storm of objections surrounding the much larger principles of suffrage, whether it was a universal “human right” or not, that would most probably have derailed the amendment’s chance of passage.

For more information

Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America. New York: Macmillan, 2007.

William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge: Harvard University Press, 1988.

Bibliography

Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, eds. History of Woman Suffrage. Volume 2, 1861-1876. Rochester: Susan B. Anthony, 1881.

All Wrapped Up in the Flag

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Betsy Ross postcard
Question

What can you tell me about the invention of the American flag? Do you have more than one perspective on this history? Also, do you have any critical views on the topic?

Answer

Here I imagine you handing me a big stick and inviting me to climb up an ancient oak and swat a huge, low hanging hornet's nest.

The question of who designed the American flag is, as they say, "contested" and has been so for 140 years. You may wonder "Why only that long?" "What about the century before that, back to the founding of the nation?" "What did people think then?"

The answer seems to be that people thought the American flag simply evolved during the Revolutionary War from other flags and ensigns used in the British empire. The Continental Congress passed a flag resolution on June 14, 1777, that read: "Resolved. That the flag of the United States be 13 stripes alternate red and white, that the Union be 13 stars white in a field of blue representing a new constellation." This resolution, however, was submitted to Congress by its Marine Committee, among other resolutions concerning the navy and shipping. It is unclear whether the flag resolution was understood at the time to have established a national standard per se, or only a naval ensign.

A letter written on May 10, 1779, from the Board of War (the Continental Congress' War Office) to George Washington, who was then encamped with his army at Middlebrook, New Jersey, underscores the uncertainty. It suggests that almost two years after the flag resolution, an official flag for the United States had not yet been set. The letter says, in part:

"It was intended that every Regiment should have two Colours—one the Standard of the United States which should be the same throughout the Army, & the other a Regimental Colour which should vary according to the facings of the Regiments. But it is not yet settled what is the Standard of the U. States. If your Excellency will therefore favor us with your Opinion on the Subject we will report to Congress & request them to establish a Standard & so soon as this is done we will endeavor to get Materials and order a Number made sufficient for the Army."

Even if there was uncertainty during this period about the flag, however, it was in fact the design as described in the flag resolution that stood alone by about 1783 as the design of the American flag. Flags were handmade during this time, however, and flags varied in the length and width of the red and white stripes, the proportion of the blue field to the stripes, the number of points on the stars, and the shape of the "constellation" of the stars on the blue field, none of which were described in the flag resolution.

Frances Hopkinson of New Jersey, a signer of the Declaration of Independence, was an official with the Continental Congress' Navy Board at the time the flag resolution was passed in 1777. After the war, he submitted a letter to the government asking to be paid for designing that flag. His request was refused, apparently because he had been an employee of the government at the time and because, it was said, "many people" had contributed to the flag design.

When new states were brought into the Union, the flag was changed to add stars (and, at first, stripes). Congress legislated this in 1794 and then, in a more detailed way, in 1818.

Most of this history was well known to researchers in the first half of the 19th century. The standard published authorities on the history of the flag consulted during this time were Schuyler Hamilton, The History of the National Flag of the United States of America (Philadelphia: Lippincott, Grambo and Company, 1852), and Ferdinand L. Sarmiento, The History of Our Flag: From the Earliest Period of Our Colonial Existence down to the Present Time (Philadelphia: A. Winch, 1864).

The Hornet's Nest

In 1870, William J. Canby delivered a paper before the Pennsylvania Historical Society, "The History of the Flag of the United States". In it, Canby related a story that his grandmother had told him before she died, in 1836, when he was 6 years old.

In 1776, she had told him, when she was a young widow, she was living on Arch Street in Philadelphia, and doing business there as an upholsterer and seamstress. Her name then was Elizabeth (that is, Betsy) Ross. One day that summer a special committee of the Continental Congress, composed of financier Robert Morris and George Ross (the uncle of her deceased husband), accompanied by George Washington, paid her a visit. Washington, said Canby, showed her a rough design for a national flag and asked her if she could make one based on the design. As Canby told it, Betsy Ross suggested a few changes in the design, to which Washington assented, including making the stars five-pointed instead of six-pointed. When the committee returned after a few days, Betsy presented them with the flag she had made and they were delighted with it, returning with it to Congress, which approved it as the national emblem.

There is no documentary evidence for any of this dating from that time, except to support the fact that Canby's grandmother, Betsy Ross, was indeed in business as an upholsterer and seamstress on Arch Street, and that government records do show that she was later reimbursed for sewing a naval ensign for a squadron of Pennsylvania ships. The only evidence Canby had to offer for his story was "family tradition," that is, a story that his grandmother had told him 36 years previously about something that she said had happened to her 60 years before that. To support his story, he collected affidavits from his aunts—Betsy's daughters (who had not been born in 1776)—and an aged cousin, all of whom affirmed that they had heard Betsy tell this story.

Canby then began an intense correspondence with naval officer, historian, and writer George Henry Preble, who was then working on a book about the history of the American flag, and convinced Preble to include the story of Betsy Ross in Preble's meandering footnotes in the volume he published in 1872, Our Flag: Origin and Progress of the Flag of the United States of America (Albany: Joel Munsell, 1872).

The following year, Canby's story was picked up and retold uncritically in an article in the widely-read Harper's New Monthly Magazine, which brought the story of Betsy Ross and the flag to a large popular audience. [H. K. W. Wilcox, "National Standards and Emblems," Harper's New Monthly Magazine, vol. 47, issue 278 (July 1873): 171-181]. The nation's daily newspapers also ran many feature stories on the birth of the flag, incorporating Canby's story.

Five years later, another Betsy Ross descendant, J. Franklin Reigart, published The History of the First United States Flag, and the Patriotism of Betsy Ross, the Immortal Heroine That Originated the First Flag of the Union ["Dedicated to the Ladies of the United States by Col. J. Franklin Reigart."] (Harrisburg, PA: L.S. Hart, 1878), which embellished the tale considerably. Reigart seems to have been motivated by a combination of family pride and a notion of chivalry that required that he "make way for the ladies." His own embroidery of the tale had Betsy not only creating the design herself based only on the sketchiest of preliminary ideas offered by Washington, but also had her, based on a "prophetic vision," sewing the words "United States of America" on the hem of the flag, thus inventing the name of the country as well. Reigart's book was received skeptically, to put it mildly, by contemporary historians.

William Canby's brother, George, took up the family tradition and continued to collect material that might support the Betsy Ross story. His nephew, Lloyd Balderston, published this material in 1909 in his book, The Evolution of the American Flag: from materials collected by the late George Canby (Philadelphia: Ferris & Leach, 1909).

Other Ross descendants also contributed their efforts on behalf of their ancestor. Oliver Randolph Parry authored Betsy Ross and the United States Flag: Philadelphia Woman Maker of the First Standard. A paper read before the Bucks County Historical Society, at Doylestown, Pa., January 19, 1909 (Philadelphia: 1909), and Edwin Satterthwaite Parry, a great-great-grandson of Betsy, published Betsy Ross, Quaker Rebel: Being the True Story of the Romantic Life of the Maker of the First American Flag (Philadelphia: John Winston Company, 1930).

A Ross descendant in the current generation has continued the defense of the story. After having read a 1972 article in the Wall Street Journal that described the Betsy Ross story as a myth (Valerie Reitman, "Tale of Betsy Ross, It Seems, Was Made Out of Whole Cloth: A Grandson Spun a Flag Story, Then Sold It to America; Now Part of Nation's Fabric," Wall Street Journal, June 12, 1992, pp. A1-A2), Ross descendant John Balderston Harker took up his pen at the challenge to the family escutcheon and has published Betsy Ross's Five Pointed Star, Elizabeth Claypoole, Quaker Flag Maker—A Historical Perspective (Melbourne Beach, FL: Canmore Press, 2005).

During the 1890s, the Betsy Ross story was spread more widely still when the American Flag House and Betsy Ross Memorial Association was founded by private investors who wished to buy, restore, and preserve the building on Philadelphia's Arch Street that they had identified as Betsy Ross's house. Schoolchildren across the nation were asked to send in their dimes to contribute to the project. They received in return certificates on which was printed a reproduction of a fanciful painting done by Charles Weisgerber of Betsy Ross presenting her flag (with the stars in a circle) to Washington, Morris, and Ross. Notably, most of the books published on Betsy Ross have been written for children and have approached the story uncritically. Reproductions of Weisgerber's painting have appeared in history textbooks around the country.

Nevertheless, a few books written by researchers outside the circle of Betsy Ross descendants have been sympathetic, to one degree or another, to the Betsy Ross story. They include:

Ray Thompson. Betsy Ross: Last of Philadelphia's Free Quakers (Fort Washington, PA: Bicentennial Press, 1972).
Robert Morris. The Truth About the Betsy Ross Story (Beach Haven, New Jersey: Wynnehaven Publishing Company, 1982).
William D. Timmins. Betsy Ross, the Griscom Legacy (Salem County, New Jersey: Cultural and Heritage Commission, 1983).

Naysayers

Most of the historians who have looked into the history of the flag have been highly skeptical of the Betsy Ross story, even as the public has embraced it. About the most positive statement that the consensus of historians' opinion can deliver is that someone might have asked Betsy Ross at some time to make a flag of some design that some American military or naval force could use. Beyond that, everything is up in the air.

Historians have pointed to inconsistencies and historical improbabilities in the story. They have also pointed to its tenuous foundation: hearsay testimony of a family member first revealed to the public 94 years after the event. Finally, they have pointed to the ways in which the story has been used as a kind of promotional device in selling things or ideas to the public. Beyond the funding of tourist sites and historical memorials in Philadelphia, and all the patriotic gewgaws and paraphernalia associated with Betsy Ross, historians have also pointed to several ideas that late 19th century promoters of one kind or another were eager to "sell" to the public. These included the necessity of national unity at a time when north and south were still healing from the divisions of the Civil War and when new waves of immigrants were arriving on the country's shores. Ideas that would get Americans to rally around the flag—such as the institution of Flag Day, the introduction of the Pledge of Allegiance, and the story of Betsy Ross—helped in this.

In addition, through the story of Betsy Ross, women could be brought into the patriotic stories of the country's founding at the time of the Revolution. Historians have argued that the story of Betsy Ross offered the country a way of incorporating the rising sentiment toward women's rights into a narrative that simultaneously added a woman into the ranks of America's founders, but also reinforced women's traditional domestic role of seamstress. In some of the more fantastic elaborations, the story also portrayed Betsy Ross as the Mother of Her Country, visited by Washington, the Father of His Country, and, through their mysterious union, bringing about what one historian has referred to as the "immaculate conception" of the flag, if not the entire idea of the country itself. The story's popularity evidently draws on some deep cultural roots apart from the lack of historical evidence to support it.

The story of Betsy Ross has echoes in the story of a young Baltimore widow, Mary Young Pickersgill. According to that story, the commander of Fort McHenry, Major George Armistead, had a committee of his officers call on Pickersgill in 1813 and commission her to sew a huge American flag to fly over the fort. After sewing it together, she delivered it to them, and it was this flag that flew over the fort when the British bombarded it in September 1814. It was her flag that inspired Francis Scott Key to write "The Star-Spangled Banner," and it is this same flag that is now on display at the Smithsonian's Museum of American History. This flag had been long stored away by a private owner, a descendant of Major Armistead, but was found, unfolded, and photographed for the first time in 1873 by George Preble when he was doing the research for the book he wrote on the history of the flag, during which time he was in correspondence with William Canby.

For more information

For critical perspectives on the Betsy Ross story, as well as for the full history of the flag:

Milo M. Quaife et al. The History of the United States Flag: From the Revolution to the Present. New York: Harper, 1961.
Mark Leepson. Flag: An American Biography. New York: St. Martin's Press, 2005.
Lonn Taylor. The Star-Spangled Banner: The Making of an American Icon. New York: Smithsonian Books, 2008.
Ed Crews. "The Truth About Betsy Ross: Popular Lore Says She Made First Flag, but Evidence for the Tale Is Scarce," Colonial Williamsburg Journal (Summer 2008).
Federal Citizen Information Page, The History of the Stars and Stripes.
The Star-Spangled Banner at the Smithsonian Institution's National Museum of American History.

Bibliography

Images:
Detail of "Birth of Our Nation's Flag," by Charles H. Weisgerber, from a reproduction print distributed at the Chicago "Century of Progress" Fair, 1934, by the Betsy Ross House.

Detail of 19th-century postcard, "Betsy Ross Making the First Flag with Stars and Stripes."

A Patriot's History of the United States, Part Two: Reinterpreting Reagan and the Cold War

Description

Professor Larry Schweikart argues that most popular textbooks today show a liberal, left-wing bias. He reexamines specific periods in U.S. history from a conservative perspective, focusing particularly on the slave market within the U.S. and then on Ronald Reagan's presidency and his role in ending the Cold War.

This lecture continues from A Patriot's History of the United States, Part One: Liberty and Property in the American Past.

A Patriot's History of the United States, Part One: Liberty and Property in the American Past

Description

Professor Larry Schweikart argues that most popular textbooks today show a liberal, left-wing bias. He reexamines specific periods in U.S. history from a conservative perspective, focusing on Ronald Reagan's presidency and the colonization of the original colonies, particularly as documents from the latter discuss property rights.

This lecture continues in A Patriot's History of the United States, Part Two: Reinterpreting Reagan and the Cold War.

The Boston Slave Petitions

Description

From the Colonial Williamsburg: Past and Present Podcasts website—

"The founders demanded freedom for themselves, but not for their slaves. Early protests show that the enslaved noticed the flaw in the logic. Historian Harvey Bakari introduces the Boston Slave Petitions."

Jackie Robinson and Other Baseball Highlights, 1860s-1960s

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Illustration, Cover of Comic Book, Library of Congress
Annotation

This site features two "special presentations" and presents hundreds of primary materials relating to baseball in America. Materials include letters, manuscripts, trading cards, lobby cards, newspaper images, photographs, advertisements, sheet music, and transcripts of interviews, speeches, and television broadcasts. The first presentation, "Baseball, the Color Line, and Jackie Robinson, 1860s-1960s," furnishes approximately 30 documents and photographs in a 5-section timeline that examines the history of Jackie Robinson's entry into the major league baseball. It includes material on the Negro Leagues, the nature of baseball's color line, Robinson's career as a Brooklyn Dodger, and his role as a civil rights activist.

A second presentation, "Early Baseball Pictures," presents 34 images dealing with baseball from the 1860s to the 1920s divided into five sections. The site also includes an annotated bibliography comprised of 82 titles and a list of six links to related resources. While limited in size and focus with regard to general baseball history, this site is valuable as an introductory look at Jackie Robinson's life and the topic of race in American sports history.

Freedom Now! An Archival Project of Tougaloo College and Brown University

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Brochure, Fundraising to aid. . . , 1970, NAACP, Tougaloo College Archives
Annotation

This searchable archive offers more than 250 documents from the Mississippi Freedom Movement, the struggle to register African Americans to vote in Mississippi in the early 1960s, and the continuing Brown-Tougaloo Cooperative Exchange that grew out of it. The Freedom Movement was "one of the most inspiring and important examples of grass-roots activism in U.S. history." The archive includes books; manuscripts; periodicals; correspondence; interview transcripts; photographs; artifacts; and legal, organizational, and personal documents.

The collection can be searched by document type, keyword, or topic, including black power/black nationalism, college students, gender issues, incarceration, labor issues, legislation, media, non-violence, protest, segregation, and state government. The site offers two lesson plans on the Mississippi Freedom Movement based on documents in the database, one focused on the experiences of college-aged civil rights workers during the Freedom Movement and the other on voter registration. Other teaching resources include links to five websites on teaching with primary documents, six sites related to the African-American civil rights movement, and eight related books. This site is a useful resource for researching the Mississippi Freedom Movement, the history and people of the civil rights movement, or African-American history.

The Legend of John Wilkes Booth: Myth, Memory, and a Mummy

Description

From the Chicago Public Radio website:

"C. Wyatt Evans reads from and discusses his illuminating and humorous book [The Legend of John Wilkes Booth: Myth, Memory, and a Mummy] about the history of John Wilkes Booth as a romantic, doomed assassin, and the way his image held the public imagination long after his death.

Enjoy this exploration of one of history's most enigmatic (and reviled) figures—John Wilkes Booth."