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

by Eric Foner

Howard’s mention of the Bill of Rights highlighted the dramatic change in the federal system brought about by the Reconstruction amendments. The Bill of Rights had been designed to restrict the actions of Congress, not the states. Chief Justice John Marshall stated this unequivocally in the case of Barron v. Baltimore (1833): “these amendments demanded security against the apprehended encroachments of the general government—not against those of the local governments.” In legal terminology, Howard was describing the “incorporation” of the Bill of Rights—that is, requiring states to abide by its provisions—a process that has been going on for much of the twentieth century and into the twenty-first.

The original Constitution had referred to the privileges and immunities of citizens of the states. The Fourteenth Amendment spoke instead of “citizens of the United States and of the State within which they reside” and prohibited states from abridging “the privileges or immunities of citizens of the United States.”

But nativism helped to undermine prospects for an “affirmative” amendment.

Since, as another newspaper declared, “there are not half a dozen states” that would approve a positive amendment, language guaranteeing the right to vote to all adult male citizens never won approval in either house. Debate focused instead on which qualifications were illegitimate.

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.

The Ku Klux Klan Act explicitly declared failure to provide protection against violence “a denial by such state of the equal protection of the laws,” thus inserting the concept of state neglect into national legislation. Even if the Fourteenth Amendment was directed only against actions by the states, John Coburn of Indiana declared, “a systematic failure to make arrests, to put on trial, to convict, or to punish offenders against the rights of a great class of citizens” was itself a violation of the equal protection of the laws.

If a state by inaction could allow the rights of citizens to be “trampled upon without color of law,” another congressman asked, “of what avail is the Constitution to its citizens?”

They expressed impatience with what Hiram Revels of Mississippi, a freeborn minister and educator and the first African-American member of the U.S. Senate, called “legal technicalities,” such as the distinction between public and private acts interfering with the exercise of constitutional rights.

The Enforcement Acts brought the enhancement of federal power spawned by the Civil War to the outer limits of the constitutional revolution. The states had always had exclusive jurisdiction over murder and assault. Could the federal government, James A. Garfield asked, prosecute citizens for such crimes? “This,” he declared, “would virtually abolish the administration of justice” by the states. To which the Civil War general Benjamin F. Butler, now representing Massachusetts in the House, replied, “If the federal government cannot pass laws to protect the rights, liberty, and lives of citizens of the United States in the states, why were guarantees of those fundamental rights put in the Constitution at all?”

Writing in 1901, former Reconstruction legislator George S. Boutwell lamented that the Fifteenth Amendment had been “defeated” and called the governments of the southern states “usurpations.” The amendment’s fate was an extraordinary example of constitutional nullification and an unusual event in the history of democracy. There cannot have been many instances in which millions of persons who enjoyed the right to vote suddenly had it taken away.