In this moment, indeed in any, Eric Foner’s new book is uncommonly valuable. The Second Founding: How the Civil War and Reconstruction Remade the Constitution offers a calibrated appreciation of the aims and accomplishments of Reconstruction-era legislators who transformed the nation’s law.
Foner, a distinguished historian of 19th century America, reminds us that following the Civil War, northern statesmen laid the foundation for an unprecedented experiment in egalitarian democracy. He offers a bracing account of the stakes during the late 1860s when the 13th, 14th, and 15th Amendments were adopted, the capstone of the postwar revolution that erased many of the legacies of slavery from the Constitution. Of course, the fulfillment of their vision would be frustrated by delays, reversals, and outright defiance. Nevertheless, the contemporary United States is far closer to the nation they envisioned than it is to the nation that the original Founders created.
Foner makes clear abolition was a gradual process, and even after the war, the terms upon which the nation would be reunited remained ambiguous and contested. President Abraham Lincoln’s Emancipation Proclamation in 1863 might have “set free” slaves in Confederate states, but it took Union victory on the battlefield for them to be “made free.” Crucially, with the proclamation, Lincoln established abolition as an official war aim, and during the next two years, he insisted eloquently that slavery was the root cause of the war. By doing so, Lincoln established a postwar mandate and built the political capital necessary to progress from emancipation to abolition.
The limitations and weakness of the proclamation — as Foner notes, Lincoln himself feared attacks on its constitutionality — necessitated a constitutional prohibition on slavery. The 13th Amendment, then, translated one outcome of the Civil War into the law of the land; henceforth, no American could legally enslave another human. In the absence of the amendment, slavery might have persisted in Delaware, Maryland, Kentucky, and Missouri for years to come. (Kentucky didn’t ratify the amendment until 1976!)
The amendment, Foner explains, was more than a milestone in the destruction of American slavery. It “created a new fundamental right to personal freedom” and, in so doing, initiated the expansion of federal authority beyond the constraints envisioned by the nation’s founders. From 1789 until 1862, the prevailing wisdom had been that the federal government could not interfere in the internal affairs of the states, above all with regard to the institution of slavery. Now, by means of constitutional amendment, the federal government deprived individual property owners in slave states of their human chattel.
A new nation was emerging. The Founders had assumed that the greatest threats to individual liberty came from excessive power concentrated in the central government. Hence the need for a battery of constitutional limits on its powers. Now, in a profound reversal, the federal government became the bulwark of individual liberty and the states the greatest threat to it. “Freedom of the person became henceforth a matter of national concern,” in the words of James G. Blaine. So clear was the need, and so egregious were the abuses in the former Confederacy, that Republicans were able to muster enough support in Congress and in state legislatures to ratify the new amendments and secure the republic’s “second founding.”
Indeed, to Foner, the 14th Amendment represents the foundation of modern American democracy. Since the nation’s founding, the status of free African Americans had been contingent on local tradition and law. In some states, free blacks enjoyed proximate legal equality, while in others, they were literally excluded from residency by law. Moreover, in 1858, the Supreme Court had ruled in the notorious Dred Scott decision that African Americans were not entitled to be full citizens anywhere. Thus, at the end of the Civil War, both formerly enslaved and free-born African Americans existed in a legal limbo.
With the 14th Amendment, a universal definition of citizenship replaced legal castes. Citizenship henceforth was a birthright; anyone born in the U.S. is a citizen regardless of one’s ancestral home, race, or color. Furthermore, the amendment enumerated the rights that the federal government pledges to protect against infringement by the states without “due process of law.” Due process and equal protection under the law, in principle, became universal rights enjoyed by all citizens.
The magnitude of the nation’s constitutional transformation became manifest during the fight for ratification. By requiring that states abide by the Bill of Rights, the amendment protected citizens against infringements of their rights at the state and local levels on national terms. So important was the ratification of the amendment that Republicans, against the steadfast opposition of President Andrew Johnson and white conservatives in the South, embraced voting rights for African Americans, a proposition that many had balked at as recently as 1867. Thus, in 1868, the extension of voting rights to the formerly enslaved men and the ratification of the 14th Amendment became the benchmark for the reintegration of the former Confederate states back into the union. Within three years of the abolition of slavery, former slaves across the South cast votes that were crucial to the ratification of the transformation of the republic’s constitution.
The ratification of the final Reconstruction-era amendment, the 15th, followed in 1870. No previous slave society had ever so swiftly or completely transformed its enslaved into rights-bearing citizens.
Especially striking is Foner’s tracing of the drafters’ recognition of the limitations and consequences of their handiwork. Given the century-long abridgment of rights of nonwhite Americans that followed, it’s tempting to assume that Reconstruction reformers were naive about the depth of American racism. To the contrary, as Foner deftly reveals, the drafters anticipated many of the methods that white supremacists subsequently used to weaken and subvert the amendments. Nevertheless, the drafters believed that the extension of voting and other civil rights to African Americans would provide them with political tools to help protect themselves. Moreover, they assumed that Congress would remain vigilant against any erosion or subversion of their goals.
Drafters acknowledged that their efforts had limitations, and Foner reminds us that each of the amendments was the product of compromise. The Republican authors knew that their handiwork outraged whites beyond those recently defeated former Confederates in the South. Some support from westerners, for whom anti-Asian bigotry was embedded in regional politics, was essential for the passage of the Reconstruction amendments. A few in Congress also recognized the injustice of excluding women from the 15th Amendment.
In the concluding chapter, Foner offers a poignant recounting of the federal judiciary’s drastic narrowing of the scope of the 14th and 15th Amendments during the late 19th century. In a string of legal rulings, some obscure and others notorious, courts sanctioned practices by states that codified racial inequality in virtually every facet of American life. In these pages, Foner offers arguably the crucial lesson of his story: “Rights can be gained and rights can be taken away.”
W. Fitzhugh Brundage is the William B. Amsted Distinguished Professor of history at the University of North Carolina at Chapel Hill and author of Civilizing Torture: An American Tradition.
