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

by Eric Foner

Of course we live today in a legal era far different from that of the late nineteenth century. But the shadow of the retreat from Reconstruction still hangs over contemporary jurisprudence. The counterinterpretation developed in Reconstruction and its aftermath, with its more powerful assertion of the rights enshrined in the Constitution by the second founding and the power of the federal government to enforce them, however, remains available, if the political environment changes.

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, or why the state action doctrine must hamstring federal efforts to protect the rights of all Americans against violation by private parties.