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

Summary: A historical look at the 13th, 14th and 15th amendments in the context of reconstruction history.

I am a big fan of Reconstruction: America’s Unfinished Revolution 1863-1877 by Eric Foner. I have yet to read his biography of Lincoln or his book on the Underground Railroad, but those are both on my list to get to eventually.

The Second Founding is mainly looking at the history around the Reconstruction Constitutional Amendments, the 13th, 14th, and 15th. The Second Founding, in some ways, is a book-length exploration of what Akhil Reed Amar did in a single chapter in his America’s Constitution: A Biography.

The real difference is the greater space given to the historical context in Foner’s Second Founding. There is a theme throughout Foner’s work of the reconstruction being a second founding, and he views that broadly. The way he conceives of the second founding is the expansion of what it means to be a citizen and who is allowed to be citizens so that the promises of liberty and freedom that are implicit in the founding of the US expand gradually, starting in reconstruction to include more and more people. Foner suggests that the implications of the reconstruction amendments are still being felt today (as with the Obergefell case).

But whatever its chronological definition, Reconstruction can also be understood as a historical process without a fixed end point, the process by which the United States tried to come to terms with the momentous results of the Civil War, especially the destruction of the institution of slavery. One might almost say that we are still trying to work out the consequences of the abolition of American slavery. In that sense, Reconstruction never ended.

The structure of the book is a historical background, a chapter on each of the three amendments individually, and then a concluding contextual section after the passage of the amendments, with a short epilogue. The main amendment chapters are both explorations of the content of the amendments and discussion around the adoption of the amendments. As with many other similar cases, sometimes the controversy at the time is roughly the same as what hist later historical debates are. And sometimes, the past discussions during the passage have almost nothing to do with the controversies that happened after passage.

One of the things that comes up here, and came up a number of times in Amar’s book is how much of the constitution has almost no legal precedent. In other words, it is surprising how much of the constitution has not had any court cases that give court insight into how a passage should be understood. It is also interesting how often courts have distorted the words on the page as well. The fourteenth amendment were more likely to be used to give rights to corporations at the end of the 19th century than it was to enforce rights for Black citizens. Separate but equal was a post 14th amendment decision (over 150 cases were decided about corporations referencing the 14th amendment between 1873 and 1900, but only about 20 in regard to Black citizenship and rights.)

As always it is also interesting to know how relevant history is to modern discussion. In many ways, while it is not quite the same as during the Civil Rights Era, this quote is still true, “It is worth noting that no significant change in the Constitution took place during the civil rights era. The movement did not need a new Constitution; it needed the existing one enforced.”

One benefit of reading about the reconstruction era is how overtly many are about White supremacy. There is a widespread belief that people with White skin are superior to people with Black skin, or other minority groups. This belief isn’t just individual animus, although it does include that, but also systemic approaches to law and culture. Even supporters of reconstruction and these constitutional amendments were often clear believers in White supremacy, even if they thought there should be legal equity.

Many recent discussions about the role of the federal government or the balance of power between the federal, state, and local governments are echoing arguments around the reconstruction amendments. The expansion of the role of the federal government to act against local or state government and eventually against private businesses (also explored in White Flight around the Civil Rights era) needs to be remembered during current discussions. It is not that all small-government advocates are somehow latently racist, but that the historical reasons for why the balance shifted toward federal power has to be understood.

The Cincinnati Commercial Gazette wondered why the federal government was “strong enough to give all men their freedom [and] make them citizens with all that the word implies . . . and yet not strong enough to protect them in the enjoyment of those rights.”

Also interesting is the charges of “reverse racism” or fears of eventual White slavery staring almost immediately after the end of the Civil War:

“Johnson denied that blacks were qualified for American citizenship and denounced what today is called reverse discrimination: “The distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” Indeed, in the idea that expanding the rights of nonwhites somehow punishes the white majority, the ghost of Andrew Johnson still haunts our discussions of race.”

As is appropriate, there is also a good discussion about how women, patricianly White women, did and did not support Black male suffrage and how and why Black male suffrage was initially connected to Women’s suffrage and then disconnected. At least part of the problem was the racism within some White women advocates of women’s suffrage and the sexism within White male legislators. It is easy to wonder what would have happened if there could have been universal suffrage instead of just male ballot at the time of the 15th amendment.

This summary at the end of the book does capture the spirit of the discussion:

The country has come a long way toward fulfilling the agenda of Reconstruction, although deep inequalities remain. Yet key elements of the second founding, including birthright citizenship, equal protection of the laws, and the right to vote, remain highly contested. And in a legal environment that relies so heavily on precedent, crucial decisions of the retreat from Reconstruction, with what Harlan called the Court’s “narrow and artificial” understanding of the Thirteenth, Fourteenth, and Fifteenth Amendments, remain undisturbed.

The Second Founding: How the Civil War and Reconstruction Remade the Constitution by Eric Foner Purchase Links: Hardcover, Kindle Edition, Audible.com Audiobook