The Second Founding: How the Civil War and Reconstruction Remade the Constitution 
by Eric Foner.
Norton, 288 pp., £18.99, October 2019, 978 0 393 65257 4
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InMay 1987, as part of the festivities marking the 200th anniversary of the United States constitution, Thurgood Marshall, the first African American to sit on the US Supreme Court, delivered a hugely controversial speech. Noting the quasi-religious reverence in which the framers of the constitution are held in America, Marshall expressed some scepticism about routine proclamations of their ‘wisdom, foresight and sense of justice’. The Founding Fathers, he pointed out, couldn’t have been so very enlightened and far-sighted: after all, the slavery they tolerated caused untold suffering, and ended in a civil war that claimed 600,000 lives. ‘While the Union survived the Civil War,’ he said, ‘the constitution did not. In its place arose a new, more promising basis for justice and equality.’ That new, more promising regime was Reconstruction, an array of reforms undertaken between 1863 and 1877 to refashion a fractured nation.

In 1863 Abraham Lincoln issued the Emancipation Proclamation, which freed all slaves then resident in jurisdictions involved in the rebellion against the federal government. Until this point, Lincoln had gone out of his way to make clear that in resorting to arms the federal government sought merely to suppress the uprising of the Confederacy, the 11 states that attempted to secede in 1861 in order to ensure the perpetuation of their ‘peculiar institution’: racial slavery. The leaders of the Confederacy, explicitly repudiating Thomas Jefferson’s declaration that ‘all men are created equal,’ had committed themselves to racial hierarchy. ‘Our new government … rests,’ the Confederate vice president, Alexander Stephens, observed, ‘upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.’

Lincoln did not believe that the federal government had the authority to do anything about slavery in the states in ordinary circumstances. He maintained, however, that as commander-in-chief of the armed forces, he had the constitutional authority to free slaves as a war measure aimed at quelling rebellion. A sentimental glow surrounds the Emancipation Proclamation, but in fact, as the historian Richard Hofstadter once said, it possessed all the ‘moral grandeur of a bill of lading’. It contained no criticism of slavery and did not free all slaves; the legal status of at least 800,000 slaves was not affected. The proclamation did not free those held in bondage in the four slave states that remained loyal to the Union: Missouri, Delaware, Kentucky and Maryland. Nor did it free the slaves in certain Southern territories already under Union control. These rather large exemptions moved the Spectator to observe that the underlying principle of the Emancipation Proclamation was ‘not that a human being cannot justly own another, but that he cannot own him unless he is loyal to the United States’. Still, the proclamation did free more than three million slaves, and many observers felt that it transformed the war for the Union into a war for the Union and freedom. When news of the proclamation arrived in South Carolina, slaves recited prayers and sang songs including ‘My Country, ’Tis of Thee’.

The proclamation announced that freedmen would now be allowed to join the United States military. Many enlisted. By the end of the Civil War 180,000 had served – about a fifth of the country’s black male population aged between 18 and 45. In the Revolutionary War of 1775-83, when the 13 American colonies sought to secede from Britain, most African Americans who took up arms did so on behalf of King George III (having been promised emancipation for doing so). By contrast, in the Civil War, the overwhelming majority who took up arms fought for the United States (the Confederacy having stubbornly resisted proposals to arm slaves until the very eve of its collapse).

Although Lincoln planned to readmit the Confederate states into the Union quickly, on generous terms, he also seemed open to granting the vote to some black men – ‘the very intelligent and … those who serve our cause as soldiers’. When the actor John Wilkes Booth heard that remark he warned: ‘That means nigger citizenship! Now, by God, I’ll put him through. That is the last speech he will ever make.’ Three days later, on Good Friday, Booth made good on his threat, shooting Lincoln at Ford’s Theatre in Washington DC.

Lincoln’s successor, Andrew Johnson, was a fierce racist who militantly opposed giving African Americans an equal legal status to whites. He supported the ending of slavery but wanted blacks to be confined to a subordinate caste. That is one of the reasons Radicals in the Republican Party – Lincoln’s party – despised Johnson, who was a Democrat, and attempted to remove him from office by impeachment. Johnson survived – he escaped conviction by one vote – but the Republicans succeeded in enacting civil rights legislation despite his opposition. The Republicans also put the former Confederate states under military rule, stipulating that they would not be allowed to become self-governing and rejoin the Union until they permitted black men to participate in politics on the same basis as white men. The pariah states acceded, with remarkable results. ‘You never saw a people more excited on the subject of politics than are the negroes of the South,’ one planter observed. ‘They are perfectly wild.’ Blacks enrolled in organisations such as the Union League, which encouraged political education through speeches and debates. They petitioned local authorities; they attended Republican rallies and conventions; they voted and ran for office even in the face of violent opposition from resentful whites, who were appalled by the prospect of blacks, including former slaves, taking part in governance. Between 1870 and 1877, 16 blacks were elected to Congress, 18 to positions as state lieutenant governors, treasurers, secretaries of state or superintendents of education, and at least six hundred to state legislatures. Blacks never had decisive control over any state government, not even in Mississippi or South Carolina, where they constituted a majority of voters. But for a short period they wielded sufficient power in substantial parts of the South to insist on the establishment of public education, laws relatively favourable to workers, debtors and tenants, and prohibitions against various sorts of racial discrimination.

Reconstruction’s most durable and consequential achievements were three amendments to the federal constitution that remain in force today. The Thirteenth Amendment went beyond the Emancipation Proclamation by abolishing slavery throughout the United States (‘except as a punishment for crime’). The Fourteenth Amendment created a constitutional definition of citizenship, declaring that anyone born in the United States (under its jurisdiction) automatically becomes a citizen. That amendment, the wordiest in the constitution, also imposed a new set of duties on states, requiring them to refrain from abridging the privileges or immunities of citizens; from depriving any person of life, liberty, or property without due process of law; and from denying to any person the equal protection of the laws. The Fifteenth Amendment declares that the right of citizens to vote shall not be denied by the United States or by any state ‘on account of race, colour or previous condition of servitude’. Each of these amendments contained a provision authorising Congress to enforce it by ‘appropriate legislation’.

Reconstruction was under attack from the outset. There was never a consensus on its legitimacy, and in the end it sank under the weight of racism, indifference, fatigue, administrative weakness, economic depression, the ebbing of idealism, and the toll exacted by terrorism, as its enemies resorted to rape, mutilation, beating and murder to intimidate blacks and their white allies. In 1870, when an African American called Andrew Flowers prevailed over a white candidate for the position of justice of the peace in Chattanooga, Tennessee, he received a whipping at the hands of white supremacists affiliated with the Ku Klux Klan. ‘They said they had nothing particular against me,’ he testified, ‘but they did not intend any nigger to hold office in the United States.’ That same year in Greene County, Alabama armed whites broke up a Republican campaign rally, killing four blacks and wounding 54 others. In 1873 in Colfax, Louisiana black Republicans and white Democrats both claimed the right to govern. When the whites prevailed in battle they massacred fifty blacks as they tried to surrender. The era was dense with such atrocities.

By 1877 every Southern state had been ‘redeemed’ – that is, was under the control of people who aimed to reimpose the norms of white supremacy. Enemies of Reconstruction removed blacks as a factor in politics and consigned them to a degraded position within a rigid pigmentocracy. The constitutional amendments survived untouched. But, at least with respect to racial matters, they were narrowly construed, if not ignored altogether. By 1900 Reconstruction had been demolished, an experiment almost wholly repudiated.

For the first half of the 20th century, many white historians, commentators and politicians portrayed Reconstruction as a calamity that stemmed from a mistaken attempt to elevate African Americans to civil and political equality. Its ‘crusade of hate and social equality’, Claude Bowers wrote in The Tragic Era (1929),

was playing havoc with a race naturally kindly and trustful. Throughout the [Civil] War, when [white] men were far away on the battlefields, and the women were alone on far plantations with slaves, hardly a woman was attacked. Then came the scum of Northern society, emissaries of the politicians, soldiers of fortune, and not a few degenerates, inflaming the negroes’ egotism, and soon the lustful assaults began. Rape is the foul daughter of Reconstruction.

Bowers’s sensational rendition mirrored the depiction of Reconstruction offered by leading academics such as William Dunning of Columbia University, who served as president of both the American Historical Association and the American Political Science Association. ‘The negro,’ Dunning wrote in Reconstruction, Political and Economic, 1865-77 (1907),

had no pride of race and no aspiration or ideals save to be like the whites. With civil rights and political power, not won, but almost forced upon him, he came gradually to understand and crave those more elusive privileges that constitute social equality. A more intimate association with the other race than that which business and politics involved was the end toward which the ambition of the blacks tended consciously or unconsciously to direct itself. The manifestations of this ambition were infinite in their diversity. It played a part in the demand for mixed schools, in the legislative prohibition of discrimination between the races in hotels and theatres, and even in the hideous crime against white womanhood which now assumed new meaning in the annals of outrage.

This pejorative interpretation of Reconstruction performed important ideological work. It justified keeping blacks in their place by painting a frightening picture of what had happened when they last had civic equality and participated in governance.

Racial liberals – including most black historians and, in the 1920s, 1930s and 1940s, a small number of white historians – stressed that democracy had been enlarged during Reconstruction, public schooling improved and labour rights strengthened. They refuted allegations that black politicians and their white ‘carpetbagger’ and ‘scalawag’ allies had been unusually corrupt and incompetent. They emphasised the illegality and immorality of the means used to topple Reconstruction. The outstanding effort was W.E.B. DuBois’s sweeping, Marxian revisionist account, Black Reconstruction in America, 1860-80 (1935). Thirty years later, in 1965, the white historian Kenneth Stampp published The Era of Reconstruction: after that, most leading historians ceased to disparage Reconstruction. Stampp’s volume appeared the year the Voting Rights Act was passed, removing the most glaring racist impediments to suffrage. The increasing legitimacy of revisionist accounts of Reconstruction was reflected in and reinforced by the Civil Rights movement. When a federal court ruled in favour of black plaintiffs challenging racial segregation on buses in Birmingham, Alabama, a white supremacist judge, citing Bowers’s The Tragic Era, urged his colleagues to recall the lessons of Reconstruction, a ‘period which all Americans recall with sadness and shame’. By then, however, growing numbers of Americans were thinking of Reconstruction with a new respect.

In​ 1988 Eric Foner published Reconstruction: America’s Unfinished Revolution, 1863-77, a grand narrative built on ground largely cleared of the racist litter left by previous scholars. It is a stupendous scholarly achievement: eloquent, accessible, punctiliously accurate, marvellously detailed, bristling with insight, conscious of broad economic, social and cultural forces, alert to personal quirks, and attentive to the ideas and activities of the actors – often women and racial minorities – historians often marginalise or ignore. For thirty years it has remained the leading work of Reconstruction historiography, despite ideological disputes and changes in methodological fashion.

In The Second Founding: How the Civil War and Reconstruction Remade the Constitution, Foner narrows his focus to the key legal transformations of the era. He argues that the Reconstruction Amendments ‘should not be seen simply as an alteration of an existing structure but as a … “constitutional revolution” … that created a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans’. Much of American history has been shaped by struggles over these amendments and whether they should be seen as mere ‘alterations’ or as a fundamental remaking of the Founding Fathers’ handiwork. Conservatives tend to take the former view, liberals the latter. One reason this struggle has been so intense is that each side can adduce facts, ideas, sentiments and historical developments that support their position.

Foner supports the liberal position. He emphasises the gulf that separates life in America before the Reconstruction Amendments from life afterwards, particularly in its racial aspects. Before Reconstruction, the civil liberties enshrined in the constitution placed limits on the federal government, but not on individual states. The constitution aimed primarily to prevent the federal government encroaching on individual liberty, including the freedom to own slaves. With Reconstruction, reformers sought to empower the federal government to guarantee the rights afforded by the three new constitutional amendments, as well as the older rights some saw as being incorporated into the new regime. These older rights were contained in the first ten amendments to the constitution. Sometimes referred to as the Bill of Rights, these amendments, ratified in 1791, provided for (among other things) freedom of religion, freedom of speech, freedom to bear arms, a prohibition against quartering soldiers in homes, a right not to face unreasonable searches and seizures, and a right to speedy trial by an impartial jury.

Foner doesn’t embrace Thurgood Marshall’s claim that the Civil War extinguished the constitutional regime of 1787. That assertion – wishful thinking perhaps – goes too far. For good and for bad – mostly bad – the initial constitution displayed a striking resilience, inhibiting efforts to elevate former slaves, protect them against resentful whites, or undergird their new freedom with socio-economic support. Like Marshall, however, Foner does seek to alter the general view of the Reconstruction and increase its standing. The Founding Fathers – including George Washington, Benjamin Franklin, James Madison and Alexander Hamilton – enjoy widespread, if superficial, public recognition. By comparison, key framers of the Reconstruction Amendments – James Ashley, Charles Sumner, Lyman Trumbull and Thaddeus Stevens – are obscure. Unfamiliar, too, are the origins and back stories of their constitutional handiwork, which Foner ably describes.

Throughout his career Foner has championed progressive radicalism in the American political tradition. In an open letter written in 2015, he chided Bernie Sanders for invoking foreign political models, suggesting that he look instead to American reformers such as Frederick Douglass, Abby Kelley, Eugene Debs and A. Philip Randolph. In The Second Founding, Foner returns to this theme, stressing the exceptional and innovative nature of the Reconstruction Amendments. The Thirteenth Amendment ordered emancipation without compensation and was the first occasion on which the constitution expanded the power of the federal government, creating ‘a new fundamental right to personal freedom, applicable to all persons in the United States regardless of race, gender, class or citizenship status’. Few countries, Foner observes, ‘and certainly none with as large a slave population, have experienced so radical a form of abolition’. The Fourteenth Amendment’s creation of birthright citizenship, he writes, represents ‘an eloquent statement about the nature of American society, a powerful force for assimilation … and a repudiation of a long history of racism’.

Foner stresses the speed with which the constitutional amendments elevated four million black slaves from bondage to citizenship to formal equality with whites. But The Second Founding is far from a triumphalist celebration. The sobering tale it tells has at least three tragic aspects. The first has to do with the enmity that the Reconstruction Amendments encountered from the start. Even after the defeat of the Confederacy, opposition to emancipation, much of it fuelled by Negrophobia, was sufficiently strong to prevent congressional approval of the Thirteenth Amendment the first time it was considered. Railing against the proposed amendment, Representative Fernando Wood, the former mayor of New York City, warned that it ‘involves the extermination of the white men of the Southern states, and the forfeiture of all the land and other property belonging to them’. The former Confederate states (with the exception of Tennessee) at first refused to ratify the Fourteenth Amendment. It would not have gained the approval of a sufficient number of states to become part of the constitution if the Republican Party hadn’t made ratification a prerequisite for a state’s regaining congressional representation.

The second tragic aspect has to do with the amendments’ deficiencies. Consider Section 2 of the Fourteenth Amendment which provides that, with certain exceptions, when the right to vote is denied to adult males the basis of that state’s congressional representation is to be reduced. Some reformers saw this as a double betrayal: it betrayed blacks by continuing to permit states to exercise racial disenfranchisement (albeit at the cost of suffering a potential reduction in representation), and it betrayed women by introducing gender into the text of the constitution for the first time. While Section 2 supposedly penalised states for excluding men from the franchise (with black men especially in mind), it expressly permitted states to exclude women with no penalty at all. ‘If that word “male” be inserted,’ Elizabeth Cady Stanton warned, ‘it will take us a century at least to get it out.’

These days, the Fourteenth Amendment tends to be unequivocally celebrated, with little or no awareness of its compromises. When it was drawn up, however, some reformers expressed keen disappointment. It ‘falls far short of my wishes’, Thaddeus Stevens said, ‘but … I believe it is all that can be obtained in the present state of public opinion.’ Outraged by its failure to guarantee black male suffrage, the abolitionist Wendell Phillips denounced it as ‘a fatal and total surrender’, and urged states to withhold ratification. When it was voted on by the Massachusetts legislature, its two black members rejected ratification.

The Fifteenth Amendment bars states and the federal government from using race as a criterion for voting. But the version of the amendment ultimately approved was among the most restricted of the alternatives considered. One senator proposed an amendment that would have prohibited states from denying the right to vote to any adult male citizen who had not been convicted of crime or participation in rebellion. Another proposed an amendment specifying nationally uniform voting requirements. But as a result of the hostility to the prospect of unrestricted male suffrage, the framers of the amendment designed an exceedingly narrow instrument that could have been foreseen as likely to enable the disfranchisement of perceived ‘undesirables’, such as immigrants from China and Ireland. In 1870, with the abolition of slavery only five years in the past, it was evident that literacy, property and similar voting requirements could accomplish much the same ends as outright racial exclusion. Henry Adams observed mordantly that the Fifteenth Amendment was ‘more remarkable for what it does not than for what it does contain’. Complaining that the version of the amendment chosen was the ‘weakest’ considered, Senator Willard Warner argued that it was ‘unworthy of the great opportunity now presented to us’.

The third tragic aspect took a while to reveal itself. Racism encumbered the Reconstruction project from the outset, but after a brief interlude of egalitarian enthusiasm that yielded impressive advances, the always fragile commitment to racial justice embraced by the Reconstruction coalition weakened precipitously. The judiciary is the branch of government Foner finds most at fault. He notes ruefully that the Supreme Court constricted the potential reach of the Thirteenth Amendment: it addressed the problem of forced labour, but not the racially stigmatising policies that continued after slavery’s demise to mark blacks as a despised minority. The court dismissed as frivolous, for example, the argument that the racial exclusion of blacks from public places – trains, hotels, theatres etc – amounted to a badge or incidence of slavery that Congress should be empowered to prohibit through the Thirteenth Amendment.

The Fourteenth Amendment bars states from making or enforcing ‘any law which shall abridge the privileges or immunities of citizens of the United States’ – a formulation that might have allowed the recognition of a broad array of individual rights. The court, however, interpreted this new provision crabbily, construing it as protecting only a narrow range of activities, such as running for federal office. The amendment provides that no state shall deny to any person ‘the equal protection of the laws’. The court insisted that this new prohibition banned racially discriminatory state action but not private action. When Congress enacted legislation to punish racial aggression by private parties, the court held that such laws went beyond the authority bestowed by the Fourteenth Amendment. The court struck down, for example, a federal law that prohibited the owners of hotels, theatres, restaurants and other ‘public accommodations’ from engaging in racial discrimination.

Then there was the question of what ‘equal protection of the laws’ entailed. In Plessy v. Ferguson (1896), the Supreme Court upheld the validity of a Louisiana statute that required the separation of white and black train passengers. Opponents of the law argued that it was racially discriminatory and thus a violation of the equal protection clause of the Fourteenth Amendment. In lonely dissent, Justice John Marshall Harlan asked rhetorically: ‘What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that coloured citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?’ The majority ruled, however, that the law in question was constitutionally inoffensive since it promised separate but equal accommodation for the races. If blacks felt insulted, the court declared, they were being oversensitive.

Similarly disappointing to proponents of racial justice was the Supreme Court’s early treatment of the Fifteenth Amendment. In Giles v. Harris (1903), plaintiffs claimed that the state of Alabama had participated in a conspiracy to disenfranchise African Americans. In an opinion written by Justice Oliver Wendell Holmes, Jr, the court concluded that even if the allegation was true, there was nothing it could appropriately do to redress the wrong. No wonder the Harvard Law Review published an article in 1910 entitled ‘Is the Fifteenth Amendment Void?’

Some of the ground lost in the long retreat from Reconstruction was regained during the ‘Second Reconstruction’ – the period roughly between 1950 and 1970 which saw an all-out challenge to white supremacism. Legislation was enacted to prohibit racial discrimination across swathes of social activity; racial disfranchisement was attacked by a series of increasingly aggressive laws; and the Supreme Court invalidated racial segregation imposed by government across the board, from schools (Brown v. Board of Education) to the marriage altar (Loving v. Virginia). ‘The country,’ Foner writes, ‘has come a long way toward filling the agenda of Reconstruction.’

Foner​ qualifies this upbeat appraisal, however, with a list of significant dissatisfactions. The ‘latent power’ of the Thirteenth Amendment, he points out, ‘has almost never been invoked as a weapon against the racism that formed so powerful an element of American slavery’, and the Fourteenth Amendment’s promise has ‘never truly been fulfilled’. To make things worse, wrong-headed rulings have made it increasingly difficult for racial minorities to obtain fairness. ‘When it comes to racial justice,’ Foner writes, ‘the court has lately proved more sympathetic to white plaintiffs complaining of reverse discrimination because of affirmative action policies than to blacks seeking assistance in overcoming the legacies of centuries of slavery and Jim Crow.’ Most distressing of all, to his mind, is the perilous position of the Fifteenth Amendment: ‘To this day the right to vote remains the subject of bitter disputation.’ The most disturbing recent episode was Shelby County v. Holder (2013), in which the Supreme Court eviscerated a key provision of the Voting Rights Act that tamped down voter suppression schemes. Since then, such schemes have spread alarmingly. Acting strictly along party lines in states it controls, the Republican Party – which has increasingly become the white man’s party – enacts legislation that makes it more difficult for certain sectors of the population to register to vote. Asserting that such laws are required to stem fraud (a claim that has been repeatedly discredited), the Republicans impose new requirements that invariably and invidiously disqualify racial minorities in disproportionate numbers. They also reduce early voting, eliminate state-supported voter registration drives, and systematically purge people from registration lists for spurious reasons. Reflecting on Shelby County, Foner complains that when conservative jurists discuss the allocation of authority between central and state government, ‘they almost always concentrate on the ideas of 18th-century framers, ignoring those of the architects of Reconstruction.’

The Second Founding exhibits the sterling qualities we have come to expect in Foner’s scholarship, particularly the careful, nuanced judgments. Resisting the overwrought pessimism currently fashionable in some parts of the left, he highlights a remarkable episode in which progressive change erupted unexpectedly. Who could have imagined in 1860 that within a decade an African American would replace the defeated president of the Confederacy as the representative of Mississippi in the Senate? But Foner also insists on recognising the strong pull of racism in American affairs. ‘Rights can be gained,’ he observes, ‘and rights can be taken away. A century and a half after the end of slavery, the project of equal citizenship remains unfinished.’

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