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

by Eric Foner

“The whole rebellion is beyond the Constitution,” wrote the political scientist Francis Lieber in 1864. But rather than concluding that a document that had palpably failed ought to be replaced, most Americans sought to square policy initiatives with the Constitution either by reinterpreting or rewriting it.29

Speaking for Democrats, the Washington Post complained, “Federal Officers to Control State Elections.”

“It seems . . . that now, as long ago,” wrote the Harrisburg Telegraph, “freedom cannot be made safe in the United States as long as we have a Supreme Court.”

The amendments’ “plain purpose,” he wrote, was to place under national jurisdiction “the whole subject” of citizens’ rights. But too many rights had been lost as soon as they reached “that grave of liberty, the Supreme Court of the United States.”50

“The white race,” Harlan wrote, was undoubtedly “the dominant race” in wealth, power, prestige, and achievements. “But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. . . . Our Constitution is color-blind.” What was at stake was not an illusory social equality but “personal liberty,” and thus the Louisiana law violated not only the Fourteenth Amendment but the Thirteenth as well. The “thin disguise” of equal facilities could not obscure the fact that enforced segregation was not an innocuous separation of the races but an expression of racial dominance rooted in slavery. The law assumed that blacks were “so inferior and degraded that they cannot be allowed to sit in proximity to white citizens.” “In my opinion,” Harlan added, “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”