John Fabian Witt teaches law at Yale Law School.
“The Second Founding” tells the story of the era’s constitutional amendments. Along the way, Foner asks how we ought to interpret the compromises enshrined in the text of the new amendments, given their grave democratic deficits. Best of all, the book offers a subtle and ingenious answer.
Foner’s book (the 25th in a prodigious career) documents how African Americans and aging abolitionists pressed new rights into the Constitution — and the ways Congress deferred many of the most important questions to an even less democratic body, the Supreme Court. In turn, the court issued a series of decisions that still shape constitutional law, limiting the force of the amendments and undermining the already meager prospects of the freedpeople.
Dozens of amendment proposals circulated in Congress at the end of the war. The first priority was to end slavery itself. Abraham Lincoln’s wartime Emancipation Proclamation had announced freedom for only 3 million of the nation’s 4 million enslaved people. In the eyes of the law, slaves living in the border states remained unfree, and so did most slaves living in Southern territory already controlled by the U.S. Army when Lincoln announced emancipation on Jan. 1, 1863. The long-term legality of wartime emancipation was also not entirely clear. At the very least, emancipation had done nothing to prohibit slavery in the South after the fighting finished. Accordingly, Congress passed the 13th Amendment in January 1865, adopting language from Thomas Jefferson’s Northwest Ordinance to announce that neither “slavery nor involuntary servitude, except as a punishment for crime,” would thereafter exist within the United States. Three-quarters of the states ratified the amendment by December.
The end of slavery, however, created a problem for the Republican Party because freedom promised paradoxically to increase the political clout of the South in Congress relative to the North. Under the infamous Three-Fifths Clause hammered out in Philadelphia in 1787, slaves had counted as three-fifths of a person for purposes of meting out representatives for each state in the House and the Electoral College. Emancipation, now counting African Americans in full, would increase Southern representation by as much as two-thirds. The 13th Amendment thus created the political imperative for the 14th, because on its own it would have handed a gift to the Civil War’s losers.
The 14th Amendment emerged in large part because support for the rights of freedpeople was a political imperative for the Republican Congress. From a welter of competing proposals, Congress enacted five separate provisions as a take-it-or-leave-it package. The first section established citizenship for people born in the United States, thereby overturning the infamous Dred Scott decision of 1857, which held that African Americans, slaves or not, could not be citizens. The same section of the new amendment barred states from abridging the privileges or immunities of citizens of the United States, from depriving any person of due process, and from denying any person “the equal protection of the laws.” The now-forgotten but politically crucial second section reduced the representation of states in the House of Representatives by the proportion of their adult male citizens denied the right to vote. The third and fourth sections barred certain Confederate officeholders from holding office in the United States and canceled debts incurred by the Confederacy. The fifth section empowered Congress to enforce the first four sections “by appropriate legislation.”
When the GOP candidate Ulysses S. Grant won the presidency in 1868, congressional Republicans took note of his narrow margin of victory and determined to amend the Constitution again in hopes of establishing and maintaining a solid Republican voting bloc among African Americans. The Constitution of 1787 by its terms had not established a right to vote for anyone. The 15th Amendment did not either, but it barred states from denying voting rights on the basis of race. Radicals in the Congress complained that states could still prevent freedpeople from voting by race-neutral ruses such as poll taxes and literacy tests. But more affirmative voting rights for black men were controversial. In 1867, white voters in Connecticut, Kansas, Ohio and Minnesota all rejected referendums to give black men the vote. The 15th Amendment’s narrow terms were, as Sen. Henry Wilson of Massachusetts put it, the best congressional Republicans could get. With its ratification in 1870, many whites in the North concluded that the work of establishing black freedom was done. “The Fifteenth Amendment,” declared future president James Garfield, “confers upon the African race the care of its own destiny.”
The last chapter of Foner’s book turns to a story well-known to historians and constitutional lawyers: The Supreme Court reshaped the compromises struck by the Reconstruction Congress’s amendments. In decision after decision, the court narrowed the force of the new provisions, reasoning that the framers of the amendments had not meant to radically remake the Constitution. The court construed the 14th Amendment’s limits on action by states to mean that the amendment’s terms did not reach private persons such as members of the Ku Klux Klan. In the law of voting rights under the 15th Amendment, Justice Oliver Wendell Holmes Jr., a onetime abolitionist, announced that the Court would not intervene to stop the Jim Crow South from denying black men the vote. And in 1896, the court’s infamous decision in Plessy v. Ferguson ruled that state law could mandate separation so long as the state at least purported to offer equal facilities. By the turn of the 20th century, elite lawyers such as John Dos Passos Sr., father of the novelist of the same name, were proposing repeal of the 15th Amendment to evade the embarrassment of the South’s defiant noncompliance with the Constitution. James Weldon Johnson, who led the NAACP in the 1920s, decried the court’s decisions from the era as “hair-splitting sophistry.”
Foner makes clear his disappointment with the late-19th-century judiciary, which he calls “a sad chapter” in U.S. history. But his attention to the social and political history of the amendments supplies another reason the courts’ decisions were so constrained. The exclusion of blacks from the process of drafting the amendments produced textual compromises that omitted the influence of their votes. One hundred and 50 years later, five justices on our Supreme Court insist that our constitutional commitments are fixed by the original meaning of those compromises. But how much can original meaning count for if the amendments had a glaring legitimacy problem from the start?
“The Second Founding” offers an implicit answer. The book opens and closes with the voices of African Americans who spoke out about what they believed freedom and equality required. Foner focuses on the Brotherhood of Liberty, an organization of black lawyers in Baltimore formed 20 years after the war. The group’s 1889 book, “Justice and Jurisprudence,” powerfully condemned the Supreme Court’s cramped postwar rulings and gave voice to a different view of constitutional rights under the Reconstruction amendments. Foner’s account leaves readers with a powerful sense that the voices of the men of the Brotherhood ought to have mattered more during the crucial decades after the Civil War in interpreting the Constitution’s amendments. The republic would have been better off if they had.
How the Civil War and Reconstruction Remade the Constitution
By Eric Foner
222 pp. $26.95