Eric Foner on Our Fragile Freedoms

Hello friends, I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to Weed of People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. In this episode, the great historian Eric Foner discusses his new book, Our Fragile Freedoms. It's a collection of essays exploring topics, including the debate over slavery, the Civil War and Reconstruction, Jim Crow in the Civil Rights Movement, and modern debates about how to teach American history. This conversation was originally streamed live as part of the MCC's America's Town Hall program on September 24, 2025. Eric Foner, it is wonderful to welcome you back to the National Constitution Center. Well, thank you very much and I'm delighted to be here. There are so many places we could begin, but let's begin with free speech where in the middle of national debate about the limits of the government's power to jawbone broadcasters, not to run speakers whom the government dislikes, and there are charges from the left and the right that free speech is under grave threat in your essays you write about past histories and threats to free speech, dating back to the Alien and Sedition Acts. What can the debate over the Alien and Sedition Acts teach us about our current battles over free speech? Well, yes, you're right, of course, that we haven't heard a lot about the Alien and Sedition Acts in our politics until the last couple of years now, the President Trump. And I think what the Alien and Sedition Acts tell us is that devotion to freedom of speech is and should be a central theme of our political system. The Alien and Sedition Acts were enacted in 1798. They were repealed or lapped a couple of years later, but they aroused enormous opposition, particularly from Thomas Jefferson and the Democratic Republican Party that he helped to bring into existence in the late 18th century. So I think there is great devotion to free speech in this country. The First Amendment makes that very explicit that Congress cannot pass laws abridging the freedom of speech. That's one of the very few things right there in the Bill of Rights that were added to the Constitution as prohibitions that would make impossible tyranny, suppression of speech, et cetera. And they also, of course, had to do not the same thing, but with the right of the President to deport people that he thought was, that he thinks are dangerous to the country. So these issues that are on the front pages of our newspapers, although actually students don't read newspapers anymore, they go online. So there's no front page, exactly. But nonetheless, these are right at the center of our political debate today, deportations, the President, as you mentioned, pressuring private organizations about what speech they should or shouldn't be allowed to articulate. But it also demonstrates that if you look at the title of my book, the fragility of our freedoms. Free speech is always contested. There's never been a straight line from the American Revolution to the present with everybody sort of gathering to respect the freedom of others. These things are fought over. They are contested, as I said. And as it was said in the 18th century, the price of liberty is eternal vigilance. And we are now at a moment, just in the last week or two, at a moment where vigilance about the right to free speech is truly necessary. And it's surprising in a way that how few major political figures have been willing to speak out in defensive free speech. I'll say one thing here and then stop with this answer. I have found myself in the last few days saying something which I never thought I would actually say. And that is good for Ted Cruz. Cruz, who I don't agree with, on most political issues, at least articulated the importance of free speech and insisted that the government telling people what they could and couldn't say is a complete violation of our constitutional system. So it's good that some political leaders are willing to say that, but too many have remained silent in the last couple of days, really. Indeed, indeed, in his TV appearance yesterday, Jimmy Kimmel also thanked Ted Cruz as well as Mitch McConnell, Joe Rogan, and other conservatives for expressing something of a bipartisan consensus around the urgent importance of defending the American free speech tradition, which, as you say, is under challenge. You have a review essay of Jeffrey Stone's book on free speech and wartime. And although you praise that book as an effective narrative history of threats to free speech by the government during wartime from the alien and sedition era to World War I to the Vietnam era. You note that it's many threats to free speech don't flow from the government. The amendment doesn't prohibit the suppression of free speech by private individuals and institutions. And you say that we should devote our attention to the ways non-government actors have affected freedom of expression by firing people because of their political beliefs. You note. And yes, solidated media can decide what views deserve to be printed. To what degree have non-governmental actors threatened free speech throughout American history? Oh, yes, I think that's a very important point. And there have been many examples in our history of groups or individuals that are not part of the government taking it upon themselves to limit what can be said. Now, many times when people who are not constitutional scholars, et cetera, talk about free speech, they confuse a little bit free speech on the right to speech on the part of the government, which is explicitly prohibited in the First Amendment, or, as you mentioned, corporations suppressing the speech of people whose views they don't like, just private organizations. And certainly, we have seen a lot of that. For example, people don't quite remember anymore, the civil rights movement was a good example of non-governmental free speech being an issue. There were efforts to suppress the speech of civil rights agitators in the 1960s, legal cases about free speech came out of the civil rights movement, but it's also true that people lost their jobs for taking part in civil rights demonstrations. You really had to have courage, not just because of physical assault, but because, you know, black and white civil rights activists were putting their lives on the line and putting their lively hoods on the line. And as I said, we're in danger of blacklist, in fact, I hear in New York City where I'm speaking from the New York Historical Society has a very good exhibit right now called blacklist about the Hollywood blacklist of the 1950s, 1940s. There it was, you know, movie studios. These are not governmental entities, but people lost their jobs because they didn't adhere to an official cannon of what was acceptable and what was not acceptable. So this has happened at various points in American history. We're seeing something like it right now in our politics, and it's important to recognize that both through the use of money, or the use of banning people from their jobs, we have seen in our history people not being able to express their views freely, and that certainly is a threat to free speech, even if it's not the government doing the suppression. That still is a danger to our sense of our freedom. The blacklist exhibit reminds us that the Supreme Court during the McCarthy era upheld many of the incursions on free speech under the smith act and elsewhere. And it wasn't until the Vietnam era, once public opinion had turned against the war, that the court began protecting free speech in a vigorous way. When you look at the history of the court, has it been the primary protector for free speech or have we found our protections elsewhere? >> Yeah, that's a good question, especially to someone like my age and perhaps your age a little younger, who were you, you know, are used to turning to the Supreme Court as a defender of our freedoms, the war in court in the 1960s, but it's not always been like that. As you said, the Supreme Court allowed, at the beginning, the suppression of free speech, and it took a while for it to go back to the principle of free expression of ideas. It's interesting, I was just reading today's New York Times, which has an interesting article about China and the United States and how our rights can be kind of frittered away by inaction. If people, it's not just the government or private corporations or others forcing people to not articulate kinds of speech, but just the sort of self-censorship which can take place when people just are afraid and don't want to lose their job and don't want to be told you can't teach anymore. You know, in the book that we were talking about, I indicated or discussed the fact that my father was a historian who was blacklisted and lost his job in the City University of New York and spent many years with, you know, trying to, with his livelihood in danger. My mother also, who was a high school art teacher, had, was asked to resign. And at least in her case, the principle of her school told her, you can't teach anymore, but I will allow you to retire on a sort of medical disability because then you will get a much bigger pension from the government. So because of a principle who didn't really approve of the suppression of speech in schools, my mother had a more of an income than she would have after she lost her job. So there are always people who stand up for principle, people on the court, people who are not in the court, judges, not necessarily only Supreme Court justices, like learned hand or some of those justices who, even when it was very unpopular, stood up for, for freedom of speech. So this has been a contested area really throughout American history. And the idea that everybody should have the right to express their views regardless of that, is not universally accepted, unfortunately. That is remarkable, you note in the book, as you say, that in 1942, during a purge of subversive instructors in the City University of New York, your father and uncle lost their teaching positions. And later your mother was dismissed from her job as a high school art teacher. I am an admirer of your uncle Philip Foner's book on the other declaration of the independences invoked by the labor movement and other movements throughout American history. And you say that at your dinner table, your parents installed the conviction that Jim Crow was scandalous and that radical dissenters like Frederick Douglass, whose powerful speeches and writers, your uncle Philip collected and published, were among the most heroic Americans and incredible family legacy of historians. What else did you learn from your father, uncle, and mother about the importance of learning from history? Well, we talked about history a lot in our family. People were my friends. This is in Long Beach, Long Island, a suburb of New York City where I grew up. Most of my friends' families had nice discussions with the dinner table, but they were generally about which car is superior to some other car. For sports, of course, I was actually a baseball fan when Jackie Robinson broke the color line in Major League Baseball, and we certainly talked about that in my family. But we talked about politics. We talked about McCarthyism, which was affecting my parents, obviously. That's what I learned. If there was one lesson I learned is that you cannot take these liberties for granted. You cannot just say, "Well, it's okay. It's in the Constitution so we don't have to bother with defending it, really." When I got to college, I discovered that many of my fellow students, very bright young men, it was old male college at the time, didn't really have this understanding of American history and the trajectory of people like Frederick Douglass or Eugene Debs, who was jailed for his anti-war views in World War I, or many others one could mention. Martin Luther King, of course, being one of the leading ones at the time that I was young, but the upbringing I had experienced was rather unusual in America in the 1950s. I didn't quite understand how unusual until I got to college, but I realized I had learned a lot about American history that was not in the textbooks of that time. You mentioned, of course, Frederick Douglass and his great oratory in writing, the whole abolitionist movement was among, as well as defending, attacking slavery, was a movement for free speech. The early abolitionists were mobbed, their meetings were broken up. The Pennsylvania Hall, the lecture hall they had built in Philadelphia was burned to the ground in the 1930s, sorry, by pro-slavery mobs. The fragility of our freedom, which is the title of this book, is something I learned very early on. That centrality of fights over free speech to the years leading up to the Civil War is when you talk about John Quincy Adams fight against the gag rule in Congress and the effort to get free speech rights for African-Americans. After your remarkable upbringing among historians, you had the privilege of studying with the great Richard Hofstadter at Columbia. We were talking just before the show started about how he taught you how to write. What else did you learn from Richard Hofstadter about the lessons of history? Hofstadter was a great historian. His work is still very relevant. His book, anti-intellectualism in American life, unfortunately, you see that now with people who refuse to accept the findings of science and just don't trust highly educated people. Of course, highly educated people can make mistakes like any other person. But the strain of anti-intellectualism was something he wrote about. Hofstadter wrote about a lot. This was during the 1960s when he was writing about the gold-water movement and the conservative revival of the 1960s. What I learned mostly from Hofstadter was actually the craft of writing. He was a brilliant writer, he was clear, he was concise. I can't even describe exactly what was great about his use of quotations. He was one of those writers who just found the right quote. It may just be a one sentence or half of a sentence, something in the archive. He knew how to work really dramatic vivid quotations into the narrative, his historical narrative, and how that makes something come alive, where you're hearing the voice of someone from our past, but you're also hearing it within the context of Hofstadter's outlook and interpretation of history. He was a great critic. I will say with honesty that he wasn't much of a lecturer, he would lecture in a way that if a graduate student did it, you'd pull him aside and say, "This is not the best way to lecture." That is to say, he just read from a manuscript, which can be pretty boring if you're in the audience. His lecture in the classroom was not really that vivid or dramatic, but when it came to criticizing writing, and you give him an essay to read or a chapter of your dissertation, you'd get it back, usually pretty quickly in a week or two, with all sorts of comments and criticisms and suggestions, and why don't you look at this, but most of them were about writing, the craft of writing. I really learned a lot to the extent that my writing is aimed at ordinary people who are interested in history, but aren't academic scholars. Those are the people I really feel I'm writing for. Of course, I use the archives of history, I go delving in the libraries. Writing Hofstad actually didn't do. Hofstad's work was based on published sources, but those of us who are historians know that there's an infinite array of historical information out there in published works in the United. Those of us who study American history don't have to go digging in obscure archives to find the answer to historical questions, although it can also be a very valuable thing. But anyway, Hofstad was just lucky for me that he was my PhD supervisor, and I do think about him a lot when I'm writing, and how would he address this subject, or what kind of quotation would he use, or maybe there's too many quotations here. He would cut a few out. In fact, another one of my professors, John Garry, who was a Columbia American historian, he had another adage, which I always remember, which is what makes a book good is what you leave out. In other words, don't stuff everything into your book. Don't give them 20 examples where one or two will do. Again, I try to be spare in writing because people don't want to just read a narrative of more and more specific information. You and Hofstad are have that rarest gift among American historians of the ability to write clearly and directly and to connect to Americans in a way that illuminates the great complexities of our history while also vividly illuminating them. I've been thinking about Hofstad and his book about the paranoid style in American politics during our recent epidemic of political violence. Hofstad traces the tradition of political violence back to the whiskey rebellion through other anti-intellectual and nativist conspiracy mongering periods like the Yankee Republicans and Southern clam members in the 20s and the McCarthyite anti-communist of the 1950s. He says that this paranoid strain marks a shift from interest politics to status politics, and then he's, although he believes that what he calls the pseudo conservative political style isn't a momentary mood. He acknowledged in 1954 and I want to share this quotation with you. He says in a populistic culture like ours, which seems to lack a responsible elite with political and moral autonomy, it's at least conceivable that a highly organized vocal active and well financed minority could create a political climate in which the rational pursuit of our well-being and safety would become impossible. Are his fears coming to pass? >> Well, I think there are dangerous signals out there, absolutely. I'm not one of my, one of people I know who simply feel our rights have gone and the authoritarianism is now going to be the mode of American politics. No, not, we have ways to go, luckily. And there are safeguards built into our constitutional system. One of the things that has been surprising though, I think, is how weak some of those safeguards have proven to be. What was it? Madison talked about the parchment barriers. In fact, he was criticizing the Bill of Rights. Isn't that right? That is to say, the Bill of Rights is not going to protect our liberties. He approved, of course, of his adoption, but people's engagement in politics, in citizenship is what will preserve our freedoms and our rights. Not just having these superb ideas in the first amendment and other parts of our Constitution, the reconstruction amendments also, of course. But you can't rely on parchment barriers, said Madison. Madison, the Madison system of power being countervailing to other powers, the ways that the system is built in order to prevent one group or one person from taking power is something that hasn't succeeded quite yet, that there's been so, particularly in the Republican Party right now. There are so little grounds for, or openings for criticism of the president. People are nervous or afraid of voicing, versing criticism of some of the policies that have been adopted, which do infringe upon some of our liberties. The Madisonian system has not stopped this governmental, not authoritarianism exact, but just governmental pressure on all sorts of people in the country to follow a particular political line. So, it's odd to be talking about this in the year 2025, you know, that the Madison system is still around, but we need to go back to some of his writings about how and why liberty would be protected. Many of the founders were quite nervous about the office of president. They saw that there was a latent power in the presidency that might not be used, but it might also be used to infringe upon American freedoms. The people like Andrew Jackson saw that, the people who have offset that thought were representing the paranoid style, as he called it. So looking at that history going back a good ways, I think we can see intimations of anti-libertarian ideologies that still can be found in our political system. As you say, the founders essentially feared that executive power might degenerate into Caesarism, but my new book on Hamilton and Jefferson begins with that famous dinner party where Hamilton blurt out the greatest man that ever lived was Julius Caesar, and Jefferson found the Democratic Republican Party in supposed opposition to the monarchical Caesarist ambitions of the Federalist, and yet both Madison and Hamilton feared a Caesar who might consolidate our call off elections and subvert democracy. But they also were lucky enough to have George Washington around as the obvious president. Everybody understood that the first president was very likely to be George Washington, not that he was looking for power really, but he was the most respected person in the country. But they also understood that people with wealth would have a great advantage over others in political contests, that sort of thing. And they also, what can I say, they didn't explain in the Constitution all the various aspects of the system, like for example, and this takes you to reconstruction, who was a citizen of the United States, who the president must be a citizen, a natural born citizen. But that doesn't tell you exactly who the citizens are, and the ambiguity of some parts of the Constitution has proven troublesome at some key moments in American history. In your section on reconstruction, you talk about birthright citizenship and say among the many ambiguities, that is not one of them. Tell us why you believe that the Constitution's text and history is clear on the question of birthright citizenship. Yeah, well, that's a political, you know, a legal issue right now. In fact, I don't even know what, when President Trump came in the first time, he issued an order questioning birthright citizenship, and there, with the second term, he has issued an order basically saying the government is not going to recognize the citizenship of people whose parents are not legally within the United States, although the 14th Amendment explicitly says that all persons born in the United States are automatically citizens. I don't see how people who believe in either textual analysis or original intent can argue that birthright citizenship, that as anybody born in the United States as a citizen, is not embedded in our constitutional system. But, you know, there were some legal cases, I don't know where they stand at the moment. There haven't been full court rulings on this issue. Maybe there will be any time soon, I don't know, but maybe the Supreme Court is sort of ducking the issue, which has happened in the past. The court may rule on the merits this term, and of course, we the people in the National Constitution Center will host debates on those crucial questions. Back to the question of Caesarism, Hamilton and Jefferson both see Aaron Burr as a kind of crypto Caesar or embryo Caesar who wants to consolidate power in his own hand and lead a secessionist movement in Louisiana, looking to other crypto Caesars throughout American history. What can reconstruction tell us? It strikes me from your writings and others that Henry Clay Wormeth, the reconstruction era governor of Louisiana, might be a kind of crypto Caesar in attempting to subvert the separation of powers of leading challenging elections in ways that led to the Battle of New Orleans and being a kind of crypto Huey Long character. Tell us about Wormeth and whether or not he might be a warning of a kind of crypto-- Well, I haven't heard much about Wormeth lately. He doesn't pop up in a lot of conversations, but he was an important figure in reconstruction. A union army veteran, an officer and veteran who remained in the south after the Civil War was over and became the governor of Louisiana during reconstruction. One was often denounced by Democrats as corrupt, as unworthy, undemocratic, etc. Most of those criticisms are not accurate and were political propaganda, basically. But Wormeth was a pretty corrupt political leader and managed to do very well for himself economically, while being governor of Louisiana. In fact, later on, he became one of the major plantation owners in the state of Louisiana. And after having been denounced by the Democrats for many-- for years, he became part of the ruling elite in the state of Louisiana. And of course, Louisiana has had a checkered history. Let's just put it that way of political corruption. Who was a Joe Gray Taylor, a very fine historian from Louisiana, who wrote a big fat book on the reconstruction of Louisiana, in dealing with this question of corruption, which Wormeth was involved in, Taylor said, "Well, there was corruption in Louisiana government during reconstruction. There was corruption in Louisiana government before reconstruction. There was corruption in Louisiana after reconstruction. It just seems like that is a permanent feature of government in Louisiana. Maybe today it's a little more on the up and up, I don't know. But I would caution listeners here not to interpret what I've been saying as supporting the idea that reconstruction was an example of undemocratic corruption. The main complaint by its opponents about reconstruction was that African Americans, for the first time in American history, became important part of the political system. They were, for the first time, black people who were elected to Congress, to the House and Senate, for the first time hundreds of African Americans held public office of one kind, members of legislatures, school board officials, all sorts of positions. In other words, reconstruction was the first effort in American history to create a biracial democratic political system, where people of all backgrounds, all races, et cetera, had the opportunity to take part in government. This was a remarkable thing. There are very few examples in history of former slaves, really becoming part of the power structure of the post-slavery system. My view of reconstruction was strongly influenced by W. E. B. Du Bois, the great scholar and activist whose book, Black Reconstruction in America, makes the point that reconstruction is an experiment in democracy. It's not just about racism, it's not just about fighting racism, not just about corruption, whatever you want to say. It's democracy that's at stake, whether people are allowed to vote and hold office and take part in public life regardless of their citizenship, well, where they came from, or regardless of the fact that they are former slaves. Remember, of course, that before the Civil War, the Supreme Court's view was that African Americans could not be American citizens, that Black people, as Chief Justice Tony famously or infamously, said, "Black people have no rights, which a white man is bound to respect." That's a completely undemocratic point of view, of course, but it was the ruling of the Supreme Court in the Dred Scott case, but that's not why people were attacking Reconstruction, or even using massive violence, riots, massacres, et cetera, to overthrow democratically elected governments in Reconstruction. It was racism, it was an inability on the part of many white people in the South to accept the principle of biracial democracy that eventually led to the overthrow of Reconstruction. That's a crucial point you've made in your scholarship channeling the spirit of the great W.E.B. De Bois, you argue that southern redemption, massive violent resistance to democratically elected governments was a subversion of the rule of law, and you talk about how so many of those cases during the redemption era arose out of Louisiana itself, that's why the warmeth is so interesting, it was the contested gubernatorial election of 1872 in Louisiana, that gives me a callfax massacre where the Supreme Court then subverts the Ku Klux Klan Acts, and then to the contested election of 1876, again, focusing on Louisiana and then striking down the Civil Rights Act, to what degree was the Supreme Court, a major actor in helping to subvert Reconstruction in the face of violent resistance? Yes, unfortunately, the Supreme Court was an important part of what you might call the retreat from Reconstruction. Even during Reconstruction itself, he's Supreme Court decisions were issued that severely weakened the ability of the federal government to protect the lives and the rights of the 4 million emancipated slaves. The Supreme Court, I don't want to go into a lot of detail on this, but the Supreme Court pretty much eviscerated parts of the 14th Amendment, the due process clause, other parts of the Reconstruction amendments, 13th, 14th, and 15th. As you said, in the Ku Klux Klan case, the Court pretty much made it impossible for the federal government to intervene to protect the basic rights of the former slaves, and that continued well after Reconstruction, all the way down to Plessy V Ferguson, which ruled in 1896 that racial segregation imposed by the state governments violated the 14th Amendment. John Marshall Harland, great justice at that time, dissented, but he was the only dissenter in Plessy. In fact, Harland, if I'm not mistaken, was the only Supreme Court justice by that time, the 1890s, who had held slaves, as before the Civil War. He had all slaves. He knew what slavery was. He saw slavery in action. He saw the segregation case as not only about separating the races, but a question of freedom that the laws that became more and more enacted to restrict the rights of blacks were a violation of emancipation that black people deserve to have the same equal status as everybody else in America, and laws making it impossible for them to vote, or laws establishing racial segregation, violated freedom, that's what John Marshall Harland said. These were a violation of freedom, another example in American history of the fragility of freedom at many points in our history. Many of freedom and the importance of often loan courageous voices like Harland and defending it. As I mentioned before we started, I have to run across the street to interview our board chair, Justice Stephen Breyer, who's indeed in town about the First Amendment, so I'd love you to close us up by telling our listeners what the history of the Civil War and Reconstruction can tell us about grounds for hope in our current times. What was it that allowed Americans to transcend polarization and violence and ultimately vindicate constitutional ideals after-- Well, that is a good question and it goes back to Madison again, I don't know, I've been talking a lot about Madison and he wasn't there in Reconstruction, but it's in the-- what was it called-- the habits of the heart, remember, who wrote that famous book on the habits of the heart. It's the belief on the part of the citizenry that these issues are important, the belief that you cannot allow freedom to be whittled away and then expect to be able to enjoy it. When one group loses its freedom, other groups will soon be going in the same direction. So again, as I said earlier on, it's the vigilance about our rights that I think is so important and the willingness to stand up for the rights of those who are unpopular. Somebody gives some kind of routine on television and which may be poor taste, but don't then jump up and say, we have to stop this person from speaking, that is a road which we ought not to be going down. As I said just now, the article I mentioned in today's New York Times about China and the erosion, how the right to dissent, little by little by little was eroded in the past 10 years in China, is a warning sign for us that this can happen and it, you know, that you can-- and self-sensorship is the worst kind of censorship because it makes it impossible for people to challenge the laws of our liberty. The habits of the heart would have powerful and important note to end on. That's from Alexis Toteville and he, like you, remind us that liberty ultimately cannot be saved by the courts or Congress or the President alone. It really is up to we the people to defend it at times of greatest threat. Eric Foner for your path-breaking, clarifying, and illuminating work, casting light on American history and inspiring Americans to learn more about it. Thank you so much. Oh, you're very welcome. I always enjoy speaking to you and discussing these constitutional questions which are so important. It's always an honor. I look forward to the next time. This episode was produced by Bill Pollock and Griffin Richie. It was recorded by Scott Bomboy and Greg Shekler, and mixed by Bill Pollock. Research was provided by Griffin Richie and a cell that tore a trace Sullivan and Tristan Worsham. Friends, I'm thrilled that my new book is now out. It's called "The Pursuit of Liberty, How Hamilton Versus Jefferson Ignore the Lasting Battle Over Power" in America. If you'd like a signed book plate, please let me know. And please check out "Pursuit the Founder's Guide to Happiness." Our final episode is about to launch. It's on Apple, Spotify, and wherever you get your podcasts. It's got a wonderful response from listeners. And if you haven't heard it yet, please check it out and let me know what you think. And always remember that the National Constitution Center is a private nonprofit. We rely on your generosity, passion, and engagement. For all our programming, please consider donating at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.