The Second Founding: How The Civil War and Reconstruction Remade The Constitution

A book my brother Joseph recommended. 

Most people in the US are unaware that the Bill of Rights originally only applied to federal legislation, not to State legislation.  This gave free rein to all sorts of abuses at the state level, especially against black Americans.  It was not until the three post-Civil War amendments (13^th, 14^th, and 15^th) that States became subject to granting rights specified in The Bill of Rights.  But nothing comes easy.  When Reconstruction ended in 1877, the courts quickly pared away these three amendment defined rights, especially in regard to blacks, and it took many decades (almost a century) to restore and fully implement these three amendments.  

The ratifying of these three amendments is what this book labels the Second Founding.  How those amendments became part of the Constitution and how they've been interpreted over the years is the subject of this book.  Foner is the author of several books about the Civil War and Reconstruction and is a Professor Emeritus of History at Columbia University.

Here’s a quick summary of these second-founding amendments: The 13th ended slavery, the Emancipation Proclamation had not done this as it was a war measure and exempted the four border states;  Section 1 of the  14th Amendment made, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The fourteenth additionally said that the state can't deprive any person of life, liberty or property without due process of law or deny anyone equal protection under the law; The 15th gave the vote to black men but not women (and not Indians).  Note:  the Civil Rights Act of 1866 passed a few months before the 14th Amendment had already established birthright citizenship. But of course, a law can be repealed by the next Congress. So the Republicans put this into the Constitution.  Also, before the Civil War, there was no clear definition of American citizenship.

My Notes:

Pg. xix:  The Civil War and the Reconstruction period that followed form the pivotal era of American history.  The Reconstruction era’s most tangible legacies are three amendments: the 13^th, 14^th, and 15^th.  The 13^th irrevocably abolished slavery.  The 14^th constitutionalized the principles of birthright citizenship and equality before the law.  The 15^th aimed to secure black male suffrage throughout the nation.  These Reconstruction amendments greatly enhanced the power of the federal government, transferring much of the authority to define citizens’ rights from the states to the nation.  These changes were so profound they amounted to a ‘second founding,’ with a new definition of both the status of blacks and the rights of all Americans.  Every term of the Supreme Court adjudicates cases requiring interpretation of the 14^th Amendment.  Some of the most transformative are Brown v. Board of Education (1954) outlawing school segregation to Obergefell v. Hodges (2015), establishing the right of gay persons to marry.

 Pg. xx:  Reconstruction has conventionally been dated from the war’s end to 1877, when the last southern state came under the control of the white supremacist Democratic Party. 

Pg. xxii:  Along with a nostalgic image of the Confederacy, the idea of the Lost Cause rested on a view of slavery as a benign, paternalistic institution and of Reconstruction as a time of ‘Negro rule’ from which the South was rescued by the heroic actions of the self-styled Redeemers who restored white supremacy. This view of history reached a mass national audience in the film the Birth of a Nation, which had its premiere in 1915 in Woodrow Wilson’s White House.  (Most libraries have this film).

Pg. xxvf:  The crucial first section of the 14^th Amendment is written in the language of general principles—due process, equal protection, privileges or immunities of citizenship—that cry out for further elaboration, making it inevitable that their specific applications would be the subject of never-ending contention.  The 13th Amendment did not clearly define ‘involuntary servitude, and the 15th  did not explain how to judge whether a state’s voting restrictions were enacted ‘on account of race’

Congress built future interpretation and implementation into the three amendments.  But this ran the risk that their purposes could be defeated by narrow judicial construction or congressional inaction.  That is what in fact happened in the decades between Reconstruction and the civil rights era (1877s-1960s). At the same time, unanticipated outcomes ended up subverting some of the amendments’ purposes.  The Thirteenth allows involuntary servitude to survive as a punishment for crime, seemingly offering constitutional sanction to the later emergence of a giant system of convict labor.  The 14th  can be understood as protecting citizens’ rights against violations by the states but not by private individuals (although this is not the only possible interpretation of its language).  The 15th  leaves the door open to forms of disenfranchisement that while not explicitly based on race, bar most blacks from voting.  The very fact that the amendments were compromises means that they are open to conflicting constructions.  However, ambiguity creates possibilities to be implemented as a matter of political power.

Pg. 5:  On the eve of the Civil War, black men enjoyed the right to vote in only five of the thirty-four states, all in New England. 

Pg. 8:  Before Reconstruction, the federal government played almost no role in defining or protecting Americans’ rights; no political idea was more deeply rooted than the right of each state to control its own affairs.  However, many Republicans identified the idea of states’ rights as second only to slavery itself as a cause of the war.  But it took a long time for a legal system grounded in autonomous local communities to be superseded by one oriented around the relationship of individual citizens to the nation-state.

Pg. 15:  The Civil War greatly enhanced the power of the national government, imposed unprecedented demands (especially conscription) upon Americans, and led Congress to enact measures previously beyond the scope of federal authority, including laws relating to banking, currency, and taxation.  Among Republicans, the war severely weakened belief in state sovereignty.  The final, irrevocable abolition of slavery throughout the entire nation did not come until December 1865, with the ratification of the 13th Amendment. (P. 22).  (Lincoln’s Proclamation of Amnesty and Reconstruction, issued in December 1863, envisioned abolition by state action.  It required southern states that desired readmission to the Union to adopt new constitutions abolishing slavery). P. 27.

Pg. 31f:  The 14th Amendment has often been viewed as instituting a dramatic change in the federal system and a substantial enhancement of the authority of the central government.  But it was the Thirteenth Amendment that was the first amendment in the nation’s history to expand the power of the federal government rather than restraining it, that initiated this redefinition of federalism.  The original Constitution had specified only three things neither the state nor federal governments could do—grant titles of nobility, pass bills of attainder, and enforce ex post facto laws.  The Thirteenth Amendment added a fourth—allow the existence of slavery. 

Pg. 44:  In the legal structure of the nineteenth-century America, on a pillar of which was the common law of coverture, adult white men were the ‘paradigmatic legal individuals.’  The end of slavery meant that black women entered a social and legal world in which men were deemed to be the heads of families, with wives and children subordinate to them. 

Pg. 45f:  Depending on how one read the first section of the Thirteenth Amendment allowing involuntary servitude, it could be read as allowing slavery itself for those convicted of crime.  The Black Code of Mississippi, quickly followed by those of other states, gave blacks certain rights, such as having their marriages recognized in law, but also imposed all sorts of disabilities, including limiting their freedom of movement and barring them from following certain occupations, owning firearms, serving on juries, testifying in cases involving whites, or voting.  Despite the 13th  Amendment, involuntary black labor—justified by the criminal exemption—was central to these Black Code laws.  They required all adult black men at the beginning of each year to sign a labor contract to work for a white employer or face prosecution for vagrancy or other vaguely defined crimes.  Apprenticeship laws authorized judges to provide planters with the unpaid labor of black children on the pretext that their parents were unable to support them. 

Pg. 50:  Convict leasing began as a cost-saving measure during Reconstruction but only burgeoned after white supremacist Democrats regained control of southern governments and enacted laws greatly expanding the number of crimes that constituted felonies.  While the laws on their face had nothing to do with race, blacks comprised the overwhelming majority of those incarcerated.

Pg. 56:  No change in the Constitution since the Bill of Rights had so profound an impact on American life as the Fourteenth Amendment.  The Amendment arose from debate, negotiation, and compromise.  It was meant to solve specific problems arising from the war, establish general principles about the rights of the freed people and of all Americans; create a uniform definition of citizenship; outline a way back into the Union for seceded states; limit the political influence of leading Confederates; contribute to the nation-building process catalyzed by the Civil War; and serve as a political platform that would enable the Republican party to retain its hold on power.  Some of these aims would be left to future generations to bring to fruition. 

Pg. 71:  Putting birthright citizenship into the Constitution in the Fourteenth Amendment represented a dramatic repudiation of the powerful tradition of equating citizenship with whiteness, a doctrine built into the naturalization process from the outset and constitutionalized by the Supreme Court in Dred Scott.  The naturalization laws which beginning in 1790 had limited the process of becoming an American citizen from abroad to ‘white’ immigrants, needed to be revised, which they were in 1870 when Congress amended these laws to enable black immigrants to become citizens.  (Yet, it was not until 1924 that Congress extended birthright national citizenship to Native Americans). 

Pg. 75:  The Bill of Rights had been designed to restrict the actions of Congress, not the states.  The Fourteenth Amendment incorporated the Bill of Rights into state obligations as well as national obligations—a process that has been going on for much of the twentieth century and into the twenty-first.  For example, before the war southern states adopted laws making criticism of slavery a crime without violating the First Amendment since these were state laws and not acts of Congress.

Pg. 85:  Modern discussion of the 14th Amendment focuses almost exclusively on Section 1, both because of its far-reaching provisions and because virtually no jurisprudence has arisen from the rest of the amendment.  Section 2—the automatic reduction of representation if states disenfranchised significant numbers of male voters—has never been implemented.  And sections 3 and 4 have been long forgotten and faded into history.

Pg. 121:  The Enforcement Acts were three bills passed by the United States Congress between 1870 and 1871. They were criminal codes that protected African-Americans’ right to vote, to hold office, to serve on juries, and receive equal protection of laws. The laws also allowed the federal government to intervene when states did not act. President Grant used this act to crush the Ku Klux Klan.  Troops arrested hundreds of Klansmen, and the group’s leaders fled the state.  

Pg. 123:  Beginning in the early 1870s the Supreme Court’s rulings involving the three foundational amendments would spell disaster for black Americans and for the Reconstruction dream of a democratic society of equals. Pg. 129:  Increasingly, the Court construed the Fourteenth Amendment as a vehicle for protecting corporate rights rather than those of the former slaves, striking down state regulations of working conditions and railroad rates on the grounds that they violated ‘freedom of contract’ protected under the Due Process Clause.  The court employed a state-centered approach in citizenship affairs and a nation-centered approach in affairs of business.  Pg. 136:  The Slaughter-House Cases, (1873), was a U.S. Supreme Court decision that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only protects the legal rights that are associated with federal citizenship, not those that pertain to state citizenship.

Ptg 126:  The 1880’s was a transitional decade in the abandonment of Reconstruction.  The ‘bargain of 1877’ between leaders of the two major parties, which resolved the disputed election of 1876, had elevated Republican Rutherford B. Hayes to the presidency while acknowledging Democratic control of all the southern states.  Yet the full imposition of the new system of white supremacy known as Jim Crow did not take place until the 1890’s.  In the 1880s, blacks, although on diminished numbers, continued to vote and hold office, and black litigants won a surprising number of victories. 

Pg. 160:  The 1890s and early twentieth century witnessed the full implementation of what came to be called the Jim Crow system.  Lynching was widespread in the South; newspapers, magazines, and popular literature replete with images of blacks as lazy and prone to violence; belief in inborn racial difference embedded in scientific discourse; and racism rife in the labor market.  The Supreme Court’s retreat from Reconstruction reached high tide.  Almost all of the cases involving the Fourteenth Amendment in the 1890s had to do with the liberty of corporations, not the former slaves and their descendants.  (In the 1880s the Court had declared corporations legal ‘persons’ entitled to the protection of the amendment’s Due Process Clause.)

Pg. 172:  In affirming the constitutionality of the Civil Rights Act of 1964 barring discrimination by businesses of all kinds, the Court relied not on the Reconstruction amendments but on the Constitution’s Interstate Commerce Clause; Federal Courts likewise in 2009 upheld the federal ‘hate crimes’ law mainly based on the Commerce Clause.  The elevation of the Commerce Clause into a ‘charter of human rights,’ has made the judiciary look ridiculous. However, relying on the Fourteenth Amendment, which makes more sense, would require repudiating a jurisprudence dating back to the 1870s.