The Second Founding

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 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.”

“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.”

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.