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

by Eric Foner

The Reconstruction Act of 1867 placed the ex-Confederate states, other than Tennessee, under temporary military rule. It required that new governments be elected by black and white male voters (with the exception of Confederate leaders barred from officeholding by the Fourteenth Amendment). The southern states were obligated to adopt new constitutions incorporating the right to vote regardless of race. And they were required to ratify the Fourteenth Amendment.48

The framers of the Fourteenth Amendment studiously avoided including black suffrage among its provisions. But without the votes of black men in southern elections and legislatures, the amendment could never have become part of the Constitution.

Over time, the Fourteenth Amendment would lead many Americans to view the federal government as the ultimate protector of their rights and to expand the definition of those rights far beyond anything known before the Civil War, or anticipated by the Thirty-ninth Congress. But the rights revolution launched by the war and emancipation was not yet complete. The very ambiguity of the language of Section 1 left it uncertain how radical a shift had taken place in the relative powers of the state and federal governments and what specific rights and entitlements were now being guaranteed by national authority.

The participants’ broad understanding of these privileges and immunities went beyond the traditional framework of civil and political rights to include full and equal access to all public institutions and accommodations.

equal public rights were essential to equal citizenship:

The future of black suffrage became a major issue in the campaign of 1868, which witnessed some of the most overt appeals to racism in American political history. While pronouncing the questions of slavery and secession “settled for all time to come,” the Democratic platform assailed Republicans for forcing “Negro supremacy” upon the South and promised to return to the ex-Confederate states “the regulation of the elective franchise.”

Republicans had to choose between the approaches outlined by Cragin and Kelley at the outset—an amendment establishing a uniform national standard that enfranchised virtually all adult male citizens, or a “negative” one barring the use of race or other criteria to limit the right to vote but otherwise leaving qualifications in the hands of the states. The first possibility represents a road not taken that would have barred the methods used by southern states in the late nineteenth century to disenfranchise their black populations as well as most state voter suppresion measures today.

Debate over the status of Chinese-Americans helped to shape the Fifteenth Amendment. In California, Nevada, and Oregon, all of which limited voting to white men, opponents focused not on the consequences of enfranchising blacks, but on the amendment’s possible future impact on the Chinese population.

voting to white men, opponents focused not on the consequences of enfranchising blacks, but on the amendment’s possible future impact on the Chinese population.

The adoption of a weaker version, restricted to eliminating racial barriers to voting, stemmed not from a limited commitment to black rights but to opposition to equality for others,

especially immigrants from China and Ireland, and the conviction that a “simple and direct” amendment was most likely to win ratification.

Unlike the Thirteenth and Fourteenth Amendments, ratification proved more problematic in the northern and border states than the South.

In 1870, the amendment affected only a small number of persons outside the former slave states. But its national scope would become critically important in the twentieth century as the Great Migration brought millions of blacks to the North and

West, giving them and their allies crucial political leverage during the civil rights era.

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.

By the end of the year, Stanton, Anthony, and their followers had formed the National Woman Suffrage Association to work independently for the vote for women, while Harper, Stone, Abby Kelley, and others established the American Woman Suffrage Association, linked to the Republican party and in favor of the Fifteenth Amendment.

The third, entitled an Act to Enforce the Fourteenth Amendment but popularly known as the Ku Klux Klan Act of 1871, made conspiracies to deprive citizens of the right to vote, serve on juries, or enjoy equal protection of the laws federal crimes, which could be prosecuted in federal courts, and authorized the president temporarily to suspend the writ of habeas corpus and use the

Act to Enforce the Fourteenth Amendment but popularly known as the Ku Klux Klan Act of 1871, made conspiracies to deprive citizens of the right to vote, serve on juries, or enjoy equal protection of the laws federal crimes, which could be prosecuted in federal courts, and authorized the president temporarily to suspend the writ of habeas corpus and use the armed forces to suppress such conspiracies. It gave the national government jurisdiction over crimes that had previously been entirely within the purview of state and local law enforcement.

armed forces to suppress such conspiracies. It gave the national government jurisdiction over crimes that had previously been entirely within the pu...

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

In a series of decisions over the course of the ensuing decades, the Supreme Court would grapple with the question of how far the constitutional system and the rights of citizens had been transformed. Its answers would spell disaster for black Americans and for the Reconstruction dream of a democratic society of equals.

Home to the nation’s largest population of free blacks before the war, Baltimore had long been a focal point of the campaign for black citizenship.

The “bargain of 1877” between leaders of the two major parties, which resolved the disputed election of 1876, had elevated Republican Rutherford B. Hayes to the presidency while acknowledging Democratic control of all the southern states. Yet the full imposition of the new system of white supremacy known as Jim Crow did not take place until the 1890s. In the 1880s, blacks, although in diminished numbers, continued to vote and hold office, and black litigants won a surprising number of victories.

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 justices insisted that the amendment had not significantly altered the balance of power between states and the nation, and proved unreceptive to claims that a state’s inaction in the face of violence or other expressions of racial inequality provided justification for federal intervention.

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 m...

So long as disenfranchisement laws did not explicitly mention race, the justices refused to intervene even as the vast majority of the South’s African-American men lost the right to vote.

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 1910.9

The issue of woman suffrage played a prominent role in Reconstruction politics. Women now enjoyed the right to vote in Wyoming and Utah territories and pressed their claims elsewhere.

Blacks sought to replace the distinction between political, civil, and social rights with one between “public” and “private” rights—the former including not only the right to vote and equality before the law but also equal treatment in public space, the latter (for example, whom one invited to one’s home) beyond the realm of legislation.

Unlike the Klan’s depredations in the late 1860s and early 1870s, the activities of Democratic “rifle clubs” were conducted by bands of undisguised men, a sign that perpetrators believed the northern public would no longer support armed intervention in the South. Widespread violence helped Democrats regain control of Alabama in the election of 1874

and Mississippi the following year.

Early in 1891, just before Congress adjourned, the bill fell victim to Republican infighting and a southern filibuster in the Senate. (This was the first important piece of legislation supported by a majority in the House and Senate and by the president to be killed by a southern filibuster. It would not be the last.)

During the 1890s, Republicans tacitly acquiesced in the southern Democratic demand that their states should be left free to regulate voting, labor relations, and the racial system without outside interference.

in the Spanish-American War, the United States acquired an overseas empire, a development that strongly reinforced the idea that white populations had a right and duty to rule over nonwhite ones.

Although Democrats had long used the disenfranchisement of persons convicted of a crime, gerrymandering, violence, and fraud to reduce the number and impact of black voters, the failure of the Lodge Bill was taken as a green light to eliminate black suffrage entirely.

The Court invalidated the Voting Rights Act’s requirement that certain jurisdictions with long histories of racial discrimination in voting obtain prior federal approval before changing voting rules.

anyone with a deeper understanding of American history would have predicted, Alabama immediately took the decision as a green light to enact laws meant to restrict the voting population. The state, for example, required a photo ID to vote and then closed driver’s license offices—where such documents can be obtained—in counties with the highest percentage of blacks in the population.

the application of the Bill of Rights to the states has come via the Fourteenth Amendment’s Due Process Clause, not its prohibition of states impairing the privileges or immunities of American citizens, which would have been more logical.

Thanks to incorporation, the states are now required to act in accordance with the fundamental liberties enumerated in the Bill of Rights, tremendously expanding the ability of all Americans to protect their civil liberties against abridgement by state and local authorities.

The elevation of the Commerce Clause into a “charter of human rights,” a way of compensating for the Supreme Court’s cramped view of the Reconstruction amendments, has made the judiciary look ridiculous. Everyone knows that guaranteeing the free flow of goods was not the motivation of those who took to the streets to demand passage of the Civil Rights Act or of the members of Congress who voted for that law. Relying on the Fourteenth Amendment, however, would require repudiating a jurisprudence dating back to the 1870s.

The Equal Protection Clause has made the Fourteenth Amendment a vehicle through which Americans of all backgrounds can claim greater rights and seek redress from various forms of discrimination.