John Hope Franklin 1915-2009

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. Bruce Boyden says:

    Gerard, thanks for sharing this. I’ve been to that reading room and can picture the scene. I try to work in to my first-year classes each year some way of making the point that brilliance and success in one’s field is not necessarily correlated with being a good person. But it sounds like John Hope Franklin was both.

  2. A.W. says:

    As a big history geek, I can say the world has lost an important figure in the way we understand history.

    To give a little background, let me give a mini lecture on the historiography of the reconstruction era. Historiography, by the way, is more or less the history of how history has been taught and seen. He was among a series of scholars most prominently including Stampp, who fundamentally changed how we saw those eras. But let’s start by clearing out a little fuzzy thinking. Often before someone tells you a “the bad guys were actually the good guys, and the good guys were actually the bad guys,” they say with panache and romance in their voice, “history is written by the victors.” That’s bull, or at least it is in a country with a reasonably strong sense of freedom of speech. The fact that numerous overtly pro-Southern books have always been able to be published proves that fact. The truth is in a free market, history is written by the market. And who is the market for Civil War and Reconstruction? You guess it, the Southerners. And I say this, as a southerner (sort of, long story).

    For a long time the history of reconstruction went something like this. The South had accepted defeat and they were ready to rejoin the union and reconcile. But the Radical Republicans were not ready to forgive. So they refused to seat the Congressmen the South sent to congress, put the south under military rule and then punished the south. Then a rebellion of white southerners, led by the red shirts and the KKK rose up and saved the south and so forth and so on.

    The fact that the KKK are the good guys in this tale is the first sign that something was deeply wrong about this narrative.

    In a very real sense, the facts didn’t change so much as how we saw the facts. For instance, if you asked what the north did to punish the south, the stock answer was things like, giving black people equal rights and the right to vote. Back in the early part of the 20th century, this was self-evidently punitive and idiotic. Today this is self-evidently a good thing, and makes you wonder if the Radical Republicans were more about human rights, than punishing the south. And in fact they were. The real story is that the South wasn’t ready to truly accept what defeat meant. So they sent a bunch of unreconstructed Confederates to Congress, and demanded even more representation in congress (because now the slaves were freed, they would be counted as 5/5 of a person for representation purposes—but of course those ex slaves still couldn’t vote). They meanwhile reduced the freed ex slaves to a state virtually identical to slavery. So the North refused to seat the southern congressmen, and yes passed a military reconstruction law to prevent those abuses. They gave black people freedom, legal equality and the right to vote. They seated the first black man in congress, and gave him Jefferson Davis’ old seat. In South Carolina where 2/3 of the population and 2/3 of the voters were black, they had their first black Lt. Governor.

    The fact that two decades later there were no black representation in South Carolina should tell you that something went horribly wrong. You might call it our first war on terror, and we lost that one. The KKK, red shirts and other terrorists rose up and beat the newly freed slaves down. And the North tired of the fight and sought an exit strategy besides victory.

    But that first story, the one that is essentially a racist and terrorist-apologizing story, that was the official story in much of the country for a long time. hell, when I was growing up, I was taught this version in school, and this was long after Mr. Franklin and his cohorts did their work. They got noticeably vague on some of it, because they knew that they couldn’t sell such an obviously racist version of history without hiding the racism. And this view was popularized in books such as “The Tragic Era,” and the fictionalized version, “The Clansman” which was adapted into “Birth of a Nation,” and even to a smaller degree, “Gone with the Wind.” Franklin and Stampp and about five others whose names are not coming to me right now, were the ones to openly challenge this view. I hate to say it, but I suspect just because of racial prejudice alone, Franklin wasn’t able to persuade as many people as, say, Stampp. But he still was a brilliant scholar and by all accounts he was still a very important figure in changing how we saw our own history.

    By the way, as a side note, this great advance in civil rights that occurred back during reconstruction, is alluded to in Mr. Smith Goes to Washington. Remember how over and over they were talking about the “great lost cause”? Normally when people talk about the lost cause, they mean the confederacy, but there is a line of thought where the lost cause referred to is black equality. And if there is any doubt about where the makers of Mr. Smith fall, you only need to look at the scene at the Lincoln Memorial, as a child reads the words of the Gettysburg Address and the camera focuses on a black man. Obviously the makers of that movie were mourning that failure.

    Another less famous example comes in a movie called “Fort Worth” a 1950 movie. Its funny, too, because you could see how it was somewhere between the John Wayne approach with its emphasis on history, and the Clint Eastwood approach with its emphasis on anti-heroes. The movie is about the clash between a railroad man and a rancher. Yeah, yeah, so railroad guy is the bad guy, the rancher is classical Jeffersonian “man of the land” and so on, right? Um, no, not exactly. See, the insight the movie had was the rancher was a businessman every bit as much as the railroad guy, and he made lots of money driving cattle, and his clash was because the railroad would take away that business. But, the railroad would also be good for the community as a whole. And caught in the middle was a our hero, a newspaper man, who happened to be a veteran of the civil war, who fought for the North. That’s right, the hero of the story is a carpetbagger. And he was an anti-hero, embittered by the failure of “the great lost cause,” which again was clearly the civil rights movement after the civil war. And as a personal angle, the railroad man was war buddies with the newspaper man. Now it does turn out that the railroad man is corrupt, too, so it ends up being the newspaper man against everyone, but it was overwhelmingly clear that the railroad was a good thing, even if the railroad guy was not a good person. A fairly decent movie artistically, and fascinating in the way it turns all those cowboy movie clichés on their head.