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

by Eric Foner

During the decades before the Civil War, black conventions, which commonly described themselves as gatherings of “colored citizens,” condemned colonization and promoted the principle of “birthright citizenship” (language used by the black abolitionist Martin R. Delany in 1852). “Nothing could be plainer,” insisted the National Convention of Colored Citizens in 1843, “than that native free born men must be citizens.” 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.

All citizens must henceforth enjoy the delineated rights in the same way as “enjoyed by white citizens.” This wording represented a remarkable innovation. Up to this point, the concept of “whiteness” existed in the law as a mark of privilege (for example, in laws specifying that only white persons could vote, serve in the militia, or become naturalized citizens). Now, 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.

The first sentence of the Fourteenth Amendment also marked a radical change in the role of black women within American society. As slaves, they gave birth to property; now their children were citizens of the nation, rather than economic assets of white southerners.

Early in March 1867, over Johnson’s veto, Republicans launched the experiment in interracial democracy known as Radical Reconstruction. 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

In July 1868, Secretary of State William H. Seward announced that the amendment had been ratified. His tally included approval by seven southern states that had first rejected the amendment and then, after new biracial governments were put in place, reversed themselves and approved it. Here, indeed, is a profound irony. 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.50

There is no reason why the Thirteenth Amendment cannot be reinvigorated as a weapon against enduring inequalities rooted in slavery, or the Fourteenth’s clause related to the privileges or immunities of citizens must remain a dead letter, why it cannot be understood to encompass rights denied by slavery and essential to full membership in American society today, such as access to an adequate education, or even the “reasonable wages” to which Lincoln said the freed slaves were entitled in the Emancipation Proclamation. Why, in the twenty-first century, should the right to vote not be considered a privilege of citizenship enjoyed by all adult Americans? There is no reason that “societal racism,” cavalierly dismissed by the Supreme Court as a justification for affirmative action and school integration programs, cannot legitimately be taken into account by the courts,