Richard Nisley

Book Review: The Second Founding
History - American Released - Nov 16, 2019
During the fateful years of 1860 and 1861, future U.S. president James A. Garfield, then a representative in the Ohio legislature, corresponded with his former student at Hiram College, Burke Hindsdale, about the alarming developments in national political affairs.They agreed this "present revolution" of southern secession was sure to spark a future revolution of freedom for the slaves.The Civil War came and with it Lincoln's "Emancipation Proclamation", issued on January 1, 1863, which freed some but not all slaves. Because it was a wartime measure, more was needed if slaves were to be made truly and lastingly free, and it came in the form of three amendments to the U.S. Constitution.These became known as the Reconstruction Amendments: the 13th Amendment, in 1865, which irrevocably ended slavery; the14th Amendment, in 1868, which promised full citizenship to former slaves, including all the rights and privileges enjoyed by whites; and the 15th Amendment, in 1870, which granted black men the right to vote. How these amendments were written and the impact they would have on the nation in general and in the South in particular is the subject of "The Second Founding," by Eric Foner, professor emeritus of history at Columbia University in New York City. At 176 pages the book is not long but as a scholarly work it requires careful reading.

The Reconstruction Amendments, says the author, “greatly enhanced the power of the federal government, transferring much of the authority to define citizens’ rights from the states to the nation.They forged a new constitutional relationship between individual Americans and the national state and were crucial in creating the world’s first biracial democracy, in which people only a few years removed from slavery exercised significant political power. All three amendments end with a clause empowering Congress to enforce their provisions, guaranteeing that Reconstruction would be a process, not a single moment in time. This in itself was a significant innovation.The Bill of Rights said nothing about how the liberties it enumerated would be implemented and protected. Introducing into the Constitution the word ‘equal protection of the law’ and ‘the right to vote (along with the qualifying ‘male,’ to the outrage of the era’s women’s rights activists), the amendments both reflected and enforced a new era of individual rights consciousness among Americans of all races and backgrounds.

“So profound were these changes,” he continues, “that the amendments should be seen not simply as an alteration of an existing structure but as a ‘second founding,’ 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.”

Alas, for black Americans it was not to be, not in the 19th century, anyway, and, perhaps, not even now. Yes, the Civil War put an end to the evil of slavery, but who could have foreseen that an even greater evil–white supremacy–lay in waiting to replace it? The three amendments promised a bright shiny future for African Americans, but neither the federal government nor the state governments could deliver on the promise. At first, the federal government sent the U.S. army down to the Southern states to enforce the new laws: elections were held and a few blacks were elected to office; in time Reconstruction ended, the troops were withdrawn, and in the very next election those few elected black officials were swept from office.

For their part the southern states did little or nothing to guarantee blacks equality before the law; they opposed the amendments and resented the federal government's interference.Their resentment took form in white supremacy groups such as the Ku Klux Klan which used violence and fear to keep black Americans in their place–on the bottom rung of the social order, as ignorant, low-wage, unskilled labor. Out of this arose the Jim Crow south which was outright hostile to African Americans, that continued for the next 100 years.

Those few black Americans who turned to the courts for redress discovered that local judges were unsympathetic to their cause and had absolutely no desire to uphold the law. Fewer still who appealed their cases up the ladder to the U. S. Supreme Court, discovered the nation’s highest court was for the most part equally unsympathetic. Among the most blatant court cases was “Plessy v. Ferguson” in which the high Court ruled that the fiction of the “separate but equal” doctrine was valid and therefore within the spirit of the Constitution.

However, black Americans had a friend on the Supreme Court who wrote a scathing dissent, one that would prove prophetic and be quoted when the “separate-but-equal” doctrine was ruled unconstitutional in “Brown v. Board of Education” over a half a century later. The justice was John Marshall Harlan of Kentucky. In his dissent he wrote: “The white race was undoubtably the dominant race (in wealth, power, prestige and achievements). But in view of the Constitution, in the eyes of the law, there is in this country no superior, dominant ruling class of citizens. . . .Our Constitution is color-blind." What was at stake was not an illusory social equality but “personal liberty, and thus the (state) law violated not only the Fourteenth Amendment but the Thirteenth as well. The thin disguise of equal facilities (schools, public transportation, etc.) could not obscure the fact that enforced segregation was not an innocuous separation of races but an expression of racial dominance rooted in slavery. The law assumed that blacks were so inferior and degraded that they cannot be allowed to sit in proximity to white citizens." “In my opinion,” Harlan added, “the judgement this day rendered will in time, prove to be quite as pernicious as the decision made by this tribunal in the ‘Dred Scott case.’”

How right he was.


The Reconstruction Amendments were in harmony with Lincoln's Gettysburg Address, in which he said "this government, under God, shall have a New Birth of Freedom . . . ."

The jury is still out as regards equality for Black Americans; however, the Fourteenth Amendment, with its equal protection clause would, in the latter half of the 20th century, delivere a new birth of freedom for many Americans in a series of ground-breaking Supreme Court decisions, decisions upholding freedom of speech, freedom of the press, and the protection of individual liberties, beginning in 1954 with "Brown v. Board of Education."

Concludes the author: “A century and a half after the end of slavery, the project of equal citizenship remains unfinished. However flawed, the era that followed the Civil War can serve as an inspiration for those striving to achieve a more equal, more just society. . . . And because the ideals of freedom, equality, and democracy are always contested, our understanding of the Reconstruction Amendments will forever be a work in progress. So long as the legacy of slavery and Jim Crow continues to plague our society, we can expect Americans to return to the nation’s second founding and find new meanings for our fractious and troubled times.”

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