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

by Eric Foner

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.”