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

by Eric Foner

the era’s most tangible legacies are the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution. The Thirteenth irrevocably abolished slavery. The Fourteenth constitutionalized the principles of birthright citizenship and equality before the law and sought to settle key issues arising from the war, such as the future political role of Confederate leaders and the fate of Confederate debt. The Fifteenth aimed to secure black male suffrage throughout the reunited nation.

This was a portrait of Reconstruction meant to justify the times in which it was written.

Ambiguity creates possibilities. It paves the way for future struggles, while giving different groups grounds on which to conduct them. Who determines which of a range of possible meanings is implemented is very much a matter of political power.

Without black suffrage in the South, there would be no Fourteenth Amendment. Yet since no blacks served in Congress when the amendment was approved, the ways black Americans understood its provisions are almost never considered when “intent” is

discussed and were consistently ignored by the Supreme Court during and after Reconstruction.

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.

In 1787, at the time of the Constitutional Convention, around 700,000 slaves lived in the United States. They made up 40 percent of the population of the states from Maryland to Georgia.

debates over slavery nearly always acknowledged what came to be called the “federal consensus”—that the national government had no power to take direct action against the institution in the states.

“The word citizen,” he responded, “is found ten times at least in the Constitution of the United States, and no definition of it is given anywhere.”

Antebellum political and legal discourse divided rights into distinct categories, not all of which every citizen enjoyed. Most basic were natural rights, such as the “unalienable” rights enumerated by Thomas Jefferson in the Declaration of Independence.

Civil rights, the second category, included legal entitlements essential to pursuing a livelihood and protecting one’s personal security

Legally, despite Webster’s dictionary, access to the ballot box was a privilege or “franchise,” not a right.

Finally there were “social rights,” an amorphous category that included personal and business relationships of many kinds.

Before Reconstruction the federal government played almost no role in defining or protecting Americans’ rights. Most of the matters addressed by the second founding had traditionally been dealt with by the states and municipalities.

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.

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.

The Civil War greatly enhanced the power of the national government, imposed unprecedented demands (especially conscription) upon Americans, and led Congress to enact measures previously beyond the scope of federal authority, including laws relating to banking, currency, and taxation.

emancipation announced the existence of a new kind of national state, one capable of abolishing the largest concentration of property in the country (slaves as property were worth nearly four billion 1860 dollars), and identified that state with the expansion of freedom and human rights.

The crucial first section of the Fourteenth extends the enjoyment of life, liberty, and property and the equal protection of the law to all “persons,” citizen or alien.

what is striking is the enduring power of constitutionalism itself—the widespread desire to find a secure constitutional basis for public policy.

A powerful combination of events moved Lincoln to adopt a new policy toward slavery. They included the congressional enactments of 1862; the failure of conventional military strategy to win the war; the desire to forestall European intervention; the need to enlist black soldiers; and the growing numbers of slaves escaping to Union lines.

All told, perhaps 800,000 of the nearly four million slaves were not covered by the proclamation. But 3.1 million were. Despite its limitations, this was the largest act of slave emancipation in world history. Never before had so many slaves been declared free on a single day.

it was the Thirteenth, the first amendment in the nation’s history to expand the power of the federal government rather than restraining it, that initiated this redefinition of federalism.

The amendment created a new fundamental right to personal freedom, applicable to all persons in the United States regardless of race, gender, class, or citizenship status.

Mississippi did not get around to ratifying the Thirteenth Amendment until 1995.

No phrase was repeated more often in discussions of the amendment than one Lincoln himself had long emphasized—the right to the fruits of one’s labor, an essential

distinction between slavery and freedom.

the amendment allowed involuntary servitude, and perhaps, depending on how one read the first section, slavery itself, to continue for those convicted of crime. The criminal exemption, almost unmentioned in the debates of 1864 and 1865, would later take on baleful significance as a constitutional justification for the exploitation of the labor of convicts.

Inadvertently, the Thirteenth Amendment had created a loophole that would later allow for the widespread leasing of convict laborers to plantations, mines, and industries in the South.

with the Constitution now shorn of its proslavery features, constitutional language assumed an even more prominent place in black political culture.

Radicals, the most prominent of whom were Thaddeus Stevens, the party’s floor leader in the House, and Senator Charles Sumner, the politician closest to the black community, saw Reconstruction as a once-in-a-lifetime opportunity to purge the republic of the legacy of slavery and guarantee that all Americans enjoyed the same rights and opportunities, secured by a powerful and beneficent national government.

Between 1865 and 1869, no fewer than eleven referendums on extending the suffrage to the minuscule black population were held in the northern states; only two, in Iowa and Minnesota, succeeded.

Seventeen proposals to restructure congressional representation came before the Joint Committee.

the Civil Rights Act of 1866, the first law to declare who is a citizen of the United States and specify rights all citizens are to enjoy.

the civil rights of white Americans became a baseline, a standard that applied to all citizens, and freedom from legal discrimination for the first time was added to the list of citizens’ rights.

On March 27, 1866, Andrew Johnson vetoed the Civil Rights Bill. Two weeks later, it became the first important statute in American history to become law over the president’s objections.

the Fourteenth Amendment emerged as a complex take-it-or-leave-it proposition. Sections with broad support, the Joint Committee hoped, would help win approval for less popular ones.

THE LAST-MINUTE ADDITION of a definition of American citizenship constitutionalized the principle that virtually every person born in the country is a citizen, regardless of race, national origin, or the political affiliation or legal status of one’s parents.

Not until 1924 did Congress extend birthright national citizenship to Native Americans, acknowledging them as members of the polity but at the same time dealing a severe blow to the idea of Indian sovereignty.

The Bill of Rights had been designed to restrict the actions of Congress, not the states.

Later in Reconstruction, Congress would determine that, under the Fourteenth Amendment, it had the authority to outlaw private practices that interfered with the promise of equal citizenship, including victimization by racially motivated violence and exclusion from hotels, transport, and other public venues. But, as we will see, the Supreme Court would apply a rigid understanding of state action to weaken dramatically the amendment’s impact.

Even before the Fourteenth Amendment was debated in Congress, deep divisions emerged within the abolitionist and feminist movements over whether the goal of black (male) suffrage should take precedence over the right to vote for all.

most Republican members of Congress did not see emancipation and the principle of legal equality as erasing the patriarchal rights of men, including black men, within their families.

While Section 2 did not enfranchise black men, for the first time it mandated a penalty for denying them the right to vote, something almost every state did before the Civil War.

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”).

The New York Herald called Section 4 “the great secret strength of this constitutional amendment,” as it aligned the country’s major financial interests with ratification.

Because it failed to include black male suffrage, abolitionists condemned the amendment. Wendell Phillips called it “a fatal and total surrender”

the fall election of 1866 became the closest thing American politics has seen to a referendum on a constitutional amendment.

Coupled with the continued intransigence of President Johnson (who broke with political tradition in the fall of 1866 to campaign actively for congressional candidates opposed to the Fourteenth Amendment) and the categorical rejection of the amendment in the South, the outcome of the fall elections spelled the end of Johnson’s plan of Reconstruction.