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

by Eric Foner

But whatever its chronological definition, Reconstruction can also be understood as a historical process without a fixed end point— the process by which the United States tried to come to terms with the momentous results of the Civil War, especially the destruction of the institution of slavery. One might almost say that we are still trying to work out the consequences of the abolition of American slavery. In that sense, Reconstruction never ended.

It is worth noting that no significant change in the Constitution took place during the civil rights era. The movement did not need a new Constitution; it needed the existing one enforced.

Slavery shaped the definition of American citizenship before the Civil War, giving it a powerful racial dimension. A nation, in Benedict Anderson’s celebrated phrase, is more than a political entity—it is also “an imagined political community,” whose borders are as much intellectual as geographic. Slavery rendered blacks all but invisible to those imagining the American community.

Long before the Civil War, abolitionists black and white put forward an understanding of national citizenship severed from the concept of race, with citizens’ rights enforced by the federal government.

Some of the language of the Reconstruction amendments—due process, privileges or immunities of citizens, the right to vote—already existed in the Constitution or were commonplace in legal language. But not “equal protection,” the heart of the first section of the Fourteenth Amendment. It was, however, a staple of abolitionist discourse. As early as 1832, Garrison’s Liberator, referring to free blacks, insisted that “they have as good and true a right to the equal protection of the law as we have.” Four years later, an abolitionist convention declared: “We must bring back the lost rights of the citizen, under the Constitution, to equal protection and privileges in every state.”

During the decades before the Civil War, black conventions, which commonly described themselves as gatherings of “colored citizens,” condemned colonization and promoted the principle of “birthright citizenship” (language used by the black abolitionist Martin R. Delany in 1852). “Nothing could be plainer,” insisted the National Convention of Colored Citizens in 1843, “than that native free born men must be citizens.” Free blacks seized upon the Constitution’s requirement that the president be a “natural born Citizen” to argue that American citizenship derived from place of birth, not ancestry or race.18

Moving well beyond the meticulously parsed distinction between natural, civil, political, and social rights, black leaders insistently claimed them all as “immunities” of American citizenship. They disassembled the fraught category of “social rights” into private and intimate personal relations, a matter of individual choice, not law, and a new category, “public rights,” which encompassed equal access to businesses serving the public such as hotels, theaters, streetcars, steamships, and railroads. Throughout the country, these businesses regularly excluded blacks. Though flagrantly violated by states such as Indiana, Illinois, and Oregon, which barred black persons from entering their territory, free blacks insisted that mobility was a key element of citizenship.

Charles Sumner, perhaps the most principled egalitarian in Congress, explained how his thinking had evolved: “For a long time I was perplexed by the subtlety so often presented, that the suffrage is a ‘privilege’ and not a ‘right,’ and being a ‘privilege,’ it was subject to such limitations as the policy or good will of the legislature chose to impose. The more I think of it, the more it seems to me an essential right.” But it was not only the radical Sumner whose concept of rights expanded during Reconstruction. The Civil War crystallized in the minds of northerners the idea of a powerful national state protecting the rights of citizens. The second founding not only put abolition, equal rights, and black male suffrage into the Constitution, but in its provisions for national enforcement made the federal government for the first time what Sumner called “the custodian of freedom.”26

When the war ended, blacks remained on the margins of northern society, deprived almost everywhere of the right to vote, and largely relegated to low-wage unskilled labor. Moreover, during the war new governments in a number of slave states abolished slavery but gave little thought to the freed people’s rights and prospects. Conventions that drafted new constitutions for Louisiana and Maryland offered almost nothing to blacks beyond abolition, and delegates strenuously denied “any sympathy with Negro equality.” Their actions reinforced a growing conviction in the Republican North that the protection of citizens’ rights could not be left in the hands of the states.28

“The whole rebellion is beyond the Constitution,” wrote the political scientist Francis Lieber in 1864. But rather than concluding that a document that had palpably failed ought to be replaced, most Americans sought to square policy initiatives with the Constitution either by reinterpreting or rewriting it.29

The second founding can only be understood as part of a much longer debate about rights, democracy, and equality, one that continues to this day.

To be sure, in retrospect the abolition of slavery seems inevitable, a preordained result of the evolution of American society or, in some tellings, a logical outgrowth of the ideals of the American Revolution. Yet it is important to remember that despite decades of antislavery agitation there were more slaves in the United States when the war began than at any point in the nation’s history. Slaveholders and their allies had controlled the federal government for nearly the entire period since the founding of the republic. In 1858, the Chicago Tribune, a major journalistic voice of antislavery sentiment, flatly declared that “no man living” would see the end of American slavery.1

Military emancipation freed numerous slaves during the Civil War. But it eventually required a constitutional amendment—a form of legal emancipation—to destroy the system for good. War did break the power of slaveholders, so that they were unable to block ratification.

Wendell Phillips, for example, called for two amendments, one abolishing slavery and another barring any state from making “any distinction among its citizens on account of race and color.”

With the South unrepresented in Congress, few members directly defended slavery. Instead, the party’s congressmen fell back on familiar arguments against abolition, notably the alleged incapacity of blacks. “The wooly-headed Negro,” declared Senator Lazarus Powell of Kentucky, was “an inferior man . . . and no fanaticism can raise him to the level of the Caucasian race.” Some Democrats warned that future congresses would wield the “revolutionary power” of Section 2 to force black citizenship, black suffrage, racial “amalgamation,” and black land ownership upon the states. Others claimed that abolition threatened private property in general. If the Constitution could be amended to abolish one form of property without monetary compensation, why not others? In the future, asked Senator Willard Saulsbury of Delaware, would Congress confiscate the factories of New England? Fernando Wood, the former mayor of New York City now a member of the House of Representatives, painted a lurid picture of the amendment’s consequences: “It involves the extermination of the white men of the southern States, and the forfeiture of all the land and other property belonging to them.”

Indeed, even though the Constitution provides for its own alteration, some opponents condemned the Thirteenth Amendment as unconstitutional. The issue, declared Anton Herrick of New York, was not slavery but “the right of the states to control their domestic affairs.” “Give up our right to have slavery,” proclaimed Robert Mallory of Kentucky, “and in what rights are we secure? One after another will be usurped . . . until all state rights will be gone” and the white population reduced to “abject submission and slavery.”

All these questions would soon arise with regard to the Fourteenth Amendment, but they were discussed at greater length in connection with the Civil Rights Act. The debate became a full-fledged examination of the meaning of equality. Democrats claimed that the bill’s “logical conclusion” was black suffrage, integrated public schools, interracial marriage, and complete “political” and “social” equality—a charge Republicans vociferously denied.

The Civil Rights Act created what one historian calls a “latent national presence within all the states.” It would remain latent if white southerners “accepted the new era,” but would be triggered when basic rights were being violated. Ironically, the law’s enforcement mechanisms were modeled on the infamous Fugitive Slave Act of 1850. Like that statute it allowed cases to be heard in federal court and envisioned the employment of the army, navy, militia, and U.S. marshals, as well as bystanders, to enforce its execution. Both laws were efforts to use federal power to secure a constitutional right and to punish public officials and private citizens who interfered. In 1850 it was the right of an owner to the return of a runaway slave; in 1866 the right of African-Americans to genuine freedom. Thus, as James Wilson put it, Congress turned “the arsenal of slavery upon itself,” wielding “the weapons which slavery has placed in our hands . . . in the holy cause of liberty.”

Johnson denied that blacks were qualified for American citizenship and denounced what today is called reverse discrimination: “The distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” Indeed, in the idea that expanding the rights of nonwhites somehow punishes the white majority, the ghost of Andrew Johnson still haunts our discussions of race.

Women, she insisted, should not “stand aside and see Sambo walk into the kingdom first.” Black men were every bit as sexist as white, she argued, and once enfranchised would be “an added power to hold us at bay.”

Seems clear that white women like Stanton may have had common cause but not a realopposition to racism

The key issue was how to ensure that state governments would respect equality of rights. Congress, as James Wilson declared during debates on the Civil Rights Bill, was not “making a general criminal code for the states.” If state authorities actually protected the rights of all then civil rights “could be left to the states.” But if necessary, “we must do our duty by supplying the protection which the states deny.” Republicans did not dismantle the federal system, but they did try to ensure that within that system, states would act responsibly.

Color, he declared, was the “mark” of inferiority, and whites should have the power to exclude other races from the ballot box. Democrats charged that political equality would lead inexorably to “social” equality and racial intermarriage.

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. Such laws make no reference to race, and thus have been deemed by the courts not to violate the Fifteenth Amendment. But because of racism inherent in our police and judicial systems, criminal laws have a disproportionate impact on black Americans. And in some states even those incarcerated for misdemeanors, or in jail awaiting trial without having been convicted of any crime, are effectively barred from voting because no provision is made for them to do so. All this would have shocked the congressmen who voted for the Fifteenth Amendment.31

Nonetheless, in 1871 and 1872 President Grant used the powers granted to him by the Enforcement Acts to crush the Ku Klux Klan. Federal marshals arrested Klansmen in numerous parts of the South. In North Carolina, the army, which had stood by for two years without acting, effectively suppressed the organization. The president suspended the writ of habeas corpus in nine South Carolina counties wracked by violence. Troops arrested hundreds of Klansmen, and the group’s leaders fled the state. Some sought refuge in Canada, following in the footsteps, ironically, of fugitive slaves before the Civil War. A series of widely publicized trials followed. Overall, between 1871 and 1873, federal prosecutors brought nearly 2,500 criminal cases under the Enforcement Acts, mostly for conspiracy to hinder voting or to deprive a person of equal protection of the laws because of race. They did not charge defendants with murder or assault, to avoid the question of whether the federal government could punish violations of state law.48 Using the federal judicial process to put down violence was not easy. The Department of Justice, only established in 1870, was understaffed. The trials overwhelmed the federal courts. Many defendants were leading members of their communities, and local whites proved reluctant to give evidence against them. Fewer than half the cases resulted in convictions, but these, coupled with the force of massive federal action, broke the Klan’s back.

between 1873 and the end of the century, while the Supreme Court decided over one hundred fifty cases arising from the Reconstruction amendments, only twenty or so had to do with their application to black Americans, far fewer than those involving corporations challenging regulation by the states. Nonetheless, over time, the Court played a crucial role in the long retreat from the ideals of Reconstruction. The process was gradual and the outcome never total, and each decision involved its own laws, facts, and legal precedents. Recent scholars have attributed the retreat not simply to judicial racism but also to the persistence of federalism—fear among the justices that too great an expansion of nationally enforceable rights would undermine the legitimate powers of the states. For African-Americans, however, the practical consequences were the same. The broad conception of constitutional rights with which blacks attempted to imbue the abolition of slavery proved tragically insecure.5

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 matters and a nation-centered approach in affairs of business.”8

By the 1890s, the Court’s members included Edward D. White, a former Confederate soldier with a deep abhorrence of Reconstruction who as a young man had participated in efforts by a white paramilitary organization to overthrow Louisiana’s biracial government. White would become chief justice in 1910.

Like many northerners, Bradley was losing patience with the seemingly endless debate about the rights of black citizens. Echoing Andrew Johnson’s veto of the Civil Rights Act of 1866, 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. (Other Americans, of course, had not been slaves, nor did they constantly face the kind of humiliating treatment Sumner’s law was meant to end.)

The Cincinnati Commercial Gazette wondered why the federal government was “strong enough to give all men their freedom [and] make them citizens with all that the word implies . . . and yet not strong enough to protect them in the enjoyment of those rights.”

Brown portrayed blacks as imagining themselves being dealt with unfairly, but at the same time referred to whites as the “dominant race” and added, “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Indeed, were white passengers forced to sit with blacks, their reputations would suffer. Whiteness, wrote Brown, was a form of “property,” and the railroad could be sued for devaluing it. Plessy, however, despite his skin color, was not white and thus not entitled to “the reputation of being a white man,” evidently worth more than a reputation of being black.56

Harlan irrefutably took apart Brown’s racist logic. “The white race,” Harlan wrote, was undoubtedly “the dominant race” in wealth, power, prestige, and achievements. “But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. . . . Our Constitution is color-blind.” What was at stake was not an illusory social equality but “personal liberty,” and thus the Louisiana law violated not only the Fourteenth Amendment but the Thirteenth as well. The “thin disguise” of equal facilities could not obscure the fact that enforced segregation was not an innocuous separation of the races but an expression of racial dominance rooted in slavery. The law assumed that blacks were “so inferior and degraded that they cannot be allowed to sit in proximity to white citizens.”

The country has come a long way toward fulfilling the agenda of Reconstruction, although deep inequalities remain. Yet key elements of the second founding, including birthright citizenship, equal protection of the laws, and the right to vote, remain highly contested. And in a legal environment that relies so heavily on precedent, crucial decisions of the retreat from Reconstruction, with what Harlan called the Court’s “narrow and artificial” understanding of the Thirteenth, Fourteenth, and Fifteenth Amendments, remain undisturbed.