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

“Before the Civil War, black spokesmen, like abolitionists more generally, tended to ground their claims in the preamble of the Declaration of Independence rather than the Constitution.”

The Declaration of Independence provided a foundational, ethical argument against slavery, emphasizing liberty and equality as natural rights. However, the Declaration lacked the legal force of the Constitution. After the war, these advocates found a robust legal framework within the Constitution to anchor their demands for civil rights and equality. The title The Second Founding reflects this critical transition—it signifies the reconstruction of the American constitutional order. By embedding new guarantees for freedom and equality directly into the Constitution, this period re-founded the nation on a more inclusive and legally enforceable basis, aligning it more closely with the ideals initially proclaimed in the Declaration of Independence.

“As the federal government committed itself to the destruction of slavery and began enlisting black men into the Union army, the question of the postwar status of African-Americans inevitably moved to the center of political debate.”

By detailing the federal government’s commitment to destroying slavery and the enlistment of black men in the Union army, Foner clarifies the direct link between military actions and subsequent political debates around Redefining Citizenship After Slavery. This situates the Civil War and Reconstruction not as discrete historical phases but as interconnected developments in a continuum of social transformation. As enlisted soldiers, African Americans were not just as passive beneficiaries of wartime policies but active participants whose involvement was crucial to their own liberation and to the Union’s victory. This emphasis shifts the narrative from one of emancipation bestowed by benevolent lawmakers to one of self-emancipation aided by critical legal and military policies.

“The Reconstruction journalist E. L. Godkin (who like Paine came to the United States from Great Britain, which lacks a written constitution) derided what he called Americans’ ‘Constitution-worship.’ Godkin believed that excessive regard for a document nearly a century old formed a serious obstacle to creative thinking in an unprecedented crisis.”

This quote connects to the theme of The Challenges of Constitutional Change. The inclusion of Godkin, a British journalist commenting on an American legal tradition, provides an external viewpoint that contrasts with native perceptions, potentially offering a less biased critique of American legal culture. Foner uses Godkin’s critical view of American “Constitution-worship” to show the tension between the veneration of the Constitution and the need for adaptive, creative responses to unprecedented societal challenges. He suggests that while the Constitution provides a legal foundation, its idolization without practical flexibility can hinder the nation’s ability to adapt to new realities, thereby complicating the process of significant reform.

“As Frederick Douglass put it, in calling for a constitutional amendment, the proclamation was ‘a vast and glorious step in the right direction. But unhappily, excellent as that paper is, it settles nothing. It is still open to decision by courts, canons, and Congresses.’”

Douglass recognizes the importance of the Emancipation Proclamation, but notes its impermanence and incompleteness. The proclamation, issued under President Lincoln’s war powers, was a temporary measure that did not inherently guarantee the permanent end of slavery; it could be contested or even reversed by subsequent legal or legislative actions. The impermanence and legal vulnerability of the Emancipation Proclamation propelled the push for the 13th Amendment, showing the importance of enshrining abolition in the Constitution.

“Traditionally, the federal government had been seen as the greatest threat to individual liberty. But, as the Chicago Tribune observed, ‘events have proved that the danger to […] freedom is from the states, not the federal government.’”

This quote captures the shift in the perception of federal and state roles. Initially, the notion of states’ rights was championed primarily as a bulwark against what was seen as overreaching federal authority, with Southern states asserting this principle to justify their secession and the preservation of slavery. This revealed that state governments, especially those in the South, could themselves become oppressors, denying fundamental liberties to certain groups of people. The idea of states’ rights needed to be reassessed, because excessive state autonomy could lead to significant abuses.

“As early as 1862, Harlan had insisted that although abolition did not necessarily imply social or political equality, it did mean that blacks ‘shall be equal with the white race in their right to themselves and the enjoyment of the proceeds of their own labor […] in their right to justice and […] [in] the right to apply the proceeds of their own labor to the promotion of their own welfare and the welfare of their dependent families.’”

Harlan’s statement delineates a clear distinction between different types of freedom, which connects to the theme Redefining Citizenship After Slavery. While he stops short of advocating for complete social or political equality, he strongly supports the notion that African Americans should possess full economic autonomy and legal protections. This stance reflects a pragmatic approach to abolition and civil rights, focusing on immediate, tangible improvements in the lives of African Americans. Harlan’s articulation of specific rights foreshadows the debates that would dominate the Reconstruction era.

“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.”

Foner’s focus on Black women allows for a more nuanced understanding of the Reconstruction era, showing that the challenges faced by newly freed individuals were not only racial but also gendered. While laws were changing to establish civil rights and voting rights for Black men, similar attention was not given to the specific needs and rights of Black women, who faced both racial and gender discrimination. This dual discrimination meant that the freedoms promised by Reconstruction were experienced differently by Black women, whose struggle for equality required confronting both racial prejudices and the entrenched gender hierarchies of their time.

“By the time the Thirteenth Amendment was ratified, the coupling of a ban on slavery with a criminal exemption had become so common as almost to qualify as ‘boilerplate’ language.”

While the 13th Amendment abolished slavery, it included an exception for penal labor, which permitted slavery as punishment for a crime. Foner’s characterization of the language as “boilerplate” suggests that such clauses had become a standard, almost unremarkable element of legal texts concerning labor and rights at the time, reflecting a normalized but problematic approach to criminal justice. This reflects The Modern Legacy of Reconstruction, because Black Codes and Jim Crow laws later used this exemption to force African Americans into new forms of servitude.

“Nearly all Republicans believed that the federal government must give substantive meaning to emancipation by defining and guaranteeing the freedpeople’s personal liberty, access to the courts, and ability to compete as free laborers. […] Moreover, the breach with Johnson, which meant that legislation would have to pass over his veto, soon put a premium on party unity.”

Johnson’s frequent vetoes meant that Republicans needed a solid front to override these vetoes, which required consolidating various factions within the party around a common agenda. This need for unity not only helped to streamline Republican legislative efforts but also significantly influenced the evolution of the party’s platform. As Republicans pushed to pass critical legislation over Johnson’s vetoes, the party increasingly adopted more radical positions that initially may have only been supported by its more progressive members. This consolidation around a more radical agenda included stronger support for the Reconstruction amendments and more stringent Reconstruction policies than might have been pursued if a more moderate president had been in office.

“In the next reapportionment allocating membership in the House of Representatives and votes in the Electoral College, all blacks would be counted as part of each state’s population. The southern states would thus enjoy added representation, giving them, as one congressman put it, ‘an undue and unjust amount of political power in the government.’”

The Three-Fifths Compromise had artificially inflated the political representation of slaveholding states, despite the disenfranchisement of a substantial portion of their populations. With the abolition of slavery, every African American would be fully counted in censuses, potentially increasing the political power of Southern states. While formerly enslaved individuals would now be counted fully for representation purposes, the vast majority remained disenfranchised, unable to vote or have any real say in the political process. Thus, the Southern states could gain increased power in the federal government without actually extending political rights and liberties to the newly counted population. This irony led to moderate Republicans considering the possibility of Black suffrage, at least in Southern states.

“Putting birthright citizenship into the Constitution 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.”

By mandating citizenship for all persons born on US soil, the amendment not only dismantled the legal foundations of racial exclusion established by Dred Scott but also challenged the deeply ingrained societal belief that race could determine the eligibility for citizenship. By embedding birthright citizenship in the Constitution, the Reconstruction framers aimed to ensure that no future legislation or court decision could easily deny American-born individuals their rights on the basis of race. This was a deliberate move to protect the civil rights of formerly enslaved individuals and their descendants and to lay a foundation for a more inclusive and equitable American society.

“Senator Justin Morrill of Maine, soon to become a member of the Joint Committee, wondered if ‘the words civil rights, immunities, privileges’ possessed such definite meaning as to be ‘practicable’ or whether Congress needed to ‘specify’ their precise import. What, more than one congressman wondered during debate on the amendment, were the ‘privileges or immunities’ of citizens?”

This demonstrates the complexities and ambiguities lawmakers faced when crafting the language of the Reconstruction amendments. These concepts, while foundational to the amendment’s purpose of ensuring equal protection under the law for all citizens, were not universally defined or understood. Morrill’s skepticism about whether these terms were sufficiently clear to be “practicable” reflects a broader uncertainty about how these rights would be implemented and protected. If the terms were left too open-ended, they could be subject to varying interpretations that might undermine the amendments’ effectiveness in protecting the newly established rights of African Americans. On the other hand, overly specific definitions could limit the flexibility needed to address future challenges or changes in social conditions.

“Was Reconstruction, as Frederick Douglass, Wendell Phillips, and others—many of them longtime advocates of woman suffrage—claimed, ‘the Negro’s hour?’ Or was it, as Susan B. Anthony, Elizabeth Cady Stanton, and other feminists maintained, a rare hour of constitutional change which, if squandered, would set back the cause of women’s rights for decades?”

This quote shows the ideological debate among reformers regarding whether the period should focus exclusively on racial equality or also advance women’s suffrage. One side prioritized addressing the severe racial injustices and inequalities that African Americans faced. They believed that solidifying these rights constitutionally during this pivotal time was essential, fearing that any delay could allow for the reversal of the gains made. Conversely, leading feminists such as Susan B. Anthony and Elizabeth Cady Stanton argued that this unique moment of constitutional change should also encompass women’s suffrage. Their stance highlights a strategic dilemma faced by social movements: whether to focus on immediate and specific goals or to pursue a comprehensive reform agenda that addresses multiple dimensions of equality simultaneously.

“Federalism endured, but a deeply modified federalism, which recognized the primacy of national citizenship and saw the states, not the national government, as most likely to infringe on Americans’ fundamental rights. This point can be appreciated simply by comparing the first words of the Bill of Rights (‘Congress shall make no law’) with the beginning of the final sentence of each Reconstruction amendment (‘Congress shall have the power’).”

Foner contrasts the restrictive language directed at the federal government in the Bill of Rights with the empowering clauses in the Reconstruction amendments to show the change in the federal government’s role. The Reconstruction amendments explicitly empower Congress to legislate actively to protect rights, reflecting a newfound trust in the federal government as a guardian of liberties against state encroachment. The federal government was no longer seen merely as a potential tyrant to be restrained, but also as a necessary protector against the tyranny of state governments.

“Republicans had to choose between the approaches outlined by Cragin and Kelley at the outset—an amendment establishing a uniform national standard that enfranchised virtually all adult male citizens, or a ‘negative’ one barring the use of race or other criteria to limit the right to vote but otherwise leaving qualifications in the hands of the states.”

There were many debates over the structure of the 15th Amendment. A positive approach involves actively setting a uniform national standard that directly grants and specifies voting rights. A negative approach, on the other hand, involves prohibiting certain behaviors without necessarily specifying what must be done instead. The positive approach represented a significant centralization of power, so it was unpopular. In contrast, the negative approach, though progressive in removing discriminatory barriers, allowed for greater variability in voting regulations, potentially leading to a patchwork of regulations that could still indirectly disenfranchise voters.

“A truly positive Fifteenth Amendment (one that did not allow for the disenfranchisement of those convicted of crimes) might have prevented the manipulation of criminal laws after Reconstruction to disenfranchise blacks, not to mention the situation today in which millions of persons, half of them no longer in prison, cannot vote because of state felony disenfranchisement laws.”

Foner connects the wording of the 15th Amendment to The Modern Legacy of Reconstruction. By pointing out that a more comprehensive amendment could have explicitly forbidden the disenfranchisement of individuals convicted of crimes, he shows the strategic and perhaps naive gaps left by its framers. This manipulation of law spotlights a recurring theme in American legal history: the adaptability of racial exclusion mechanisms within the framework of formally neutral laws. Foner believes that constitutional protections need to be both explicit and anticipatory.

“The widespread violence propelled the question of physical safety, and the federal government’s responsibility to ensure it, to the forefront of discussions of rights and citizenship. Could constitutionally guaranteed rights be nullified by private acts of violence? Did the amendments protect blacks only against violence directly sanctioned by the state, such as an 1871 lynching conducted by members of Kentucky’s militia, using weapons taken from the state armory? What were the limits of the authority granted to Congress to enforce the provisions of the three Reconstruction amendments?”

Foner uses rhetorical questions to encourage consideration of these issues not as distant historical events but as ongoing challenges with direct relevance to contemporary debates about rights, citizenship, and federal authority. By not immediately providing answers, Foner shows that these were open and contentious issues, reflecting the genuine confusion and search for direction during the second founding. The uncertainty over how much protection the federal government was allowed to provide connects to the theme Redefining Citizenship After Slavery.

“The second founding, Miller insisted, had not ‘radically’ changed the federal system. It did not intend ‘to fetter and degrade the state governments by subjecting them to the control of Congress,’ or to make the Supreme Court a ‘perpetual censor’ of state laws. The Fourteenth Amendment, he continued, protected only those rights that derived from national, not state, citizenship.”

Miller, a conservative justice, provides a narrow interpretation of the 14th Amendment. He sought to limit the reach of the 14th Amendment by tying its protections strictly to issues of national citizenship, thereby excluding a broader array of rights that might be considered under state jurisdiction. This perspective, which is shared by modern Supreme Court justices, effectively narrowed the potential for the 14th Amendment to be used as a tool against various forms of state-level discrimination, confining its applicability and weakening its potential as a transformative force in American civil rights.

“Blacks sought to replace the distinction between political, civil, and social rights with one between ‘public’ and ‘private’ rights—the former including not only the right to vote and equality before the law but also equal treatment in public space, the latter (for example, whom one invited to one’s home) beyond the realm of legislation.”

The emphasis on “public” rights reflects a broader interpretation of what civil rights should encompass. This change represented a radical departure from prewar perspectives. Before abolition, the right to participate fully in public life was not even assumed to be a legitimate aspiration for African Americans. Instead of accepting the traditional compartmentalization that often left them disenfranchised and discriminated against, African Americans redefined rights to better protect their interests and reflect their experiences.

“Bradley wrote that blacks needed to stop seeking ‘to be the special favorite of the laws’ and be satisfied with having their rights protected in the same ways as other Americans.”

This quote reflects the weariness that white people felt by the end of the 19th century in regard to Black rights. Bradley’s framing suggests a call for a colorblind approach to the law, which on the surface promotes equality but in practice can ignore the unique historical and social contexts that necessitate targeted legal protections to address entrenched racial disparities. By suggesting that African Americans should be satisfied with the same level of legal protection afforded to “other Americans,” Bradley’s opinion overlooks the inherent assumption of whiteness as the basis of political freedoms granted by the Constitution and the additional barriers imposed by racial prejudice and discrimination that African Americans uniquely faced.

“In effect, Holmes threw up his hands and described the Supreme Court as impotent. If ‘the great mass of the white population intends to keep the blacks from voting,’ he wrote, there was nothing the justices could do unless they were prepared to have the federal courts supervise voting throughout Alabama. ‘Relief from a great political wrong’ could only come from the ‘people of a state’ through their elected officials, or from Congress.”

Foner criticizes Holmes’s resignation to the Supreme Court’s limitations in addressing racial disenfranchisement, viewing it as an abdication of the judiciary’s duty to uphold constitutional protections. From Foner’s perspective, Holmes’s view that the court was powerless against the majority white population in states like Alabama revealed a failure to address a significant injustice. Furthermore, it set a dangerous precedent by implying that the judiciary could not intervene in clear cases of racial discrimination without directly overseeing state activities. Holmes’s decision contributed to the perpetuation of Jim Crow laws and the codification of racial segregation and voter suppression, delaying significant civil rights advancements for decades.

“It would be unfair, the Court insisted, to suspect states and localities that had discriminated in the past of desiring to do so in the present. As anyone with a deeper understanding of American history would have predicted, Alabama immediately took the decision as a green light to enact laws meant to restrict the voting population.”

This case shows the tension between judicial ideals and the sociopolitical realities of modern America. This judicial optimism ignores the deep-rooted and systemic issues that continue to influence state policies and actions. Consequently, Alabama’s immediate response, interpreting the court’s decision as a “green light” to enact restrictive voting laws, exemplifies the practical repercussions of such judicial decisions. This move by Alabama shows the ongoing challenges in protecting civil rights, particularly voting rights, against states’ attempts to undermine them through legal maneuvers that may appear race-neutral but have discriminatory effects.

“When Congress in 2009 enacted a federal ‘hate crimes’ law allowing for federal prosecution of acts of violence motivated by bias related to race, gender, religion, and national origin, it too mainly based its action on the Commerce Clause.”

Foner critiques the use of the Commerce Clause, noting a dissonance between the original intentions of the Reconstruction amendments and modern legislative strategies. He contrasts the 14th Amendment’s guarantee of equal protection and due process with the use of broader, less directly related constitutional clauses like the Commerce Clause. This trend is problematic because it reflects a weakening of the 14th Amendment’s perceived applicability and robustness in directly addressing civil rights and hate crimes. By opting for the Commerce Clause, Congress may be seen as sidestepping the more substantive civil rights protections envisioned by the 14th Amendment.