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

by Eric Foner

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