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.