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Can we reanimate the dream of freedom that Congress tried to enact in the
wake of the Civil War?

By Eric Foner
Mr. Foner is the author of “The Second Founding: How the Civil War and
Reconstruction Remade the Constitution.”
Sept. 7, 2019

Among the unanticipated consequences of the election of Donald Trump has
been a surge of interest in post-Civil War Reconstruction, when this
country first attempted to construct an interracial democracy, and in the
restoration of white supremacy that followed. Many Americans feel that we
are living at a time like the end of the 19th century, when, in the words
of Frederick Douglass, “principles which we all thought to have been firmly
and permanently settled” were “boldly assaulted and overthrown.”

Douglass was referring to the rights enshrined in three constitutional
amendments ratified between 1865 and 1870. The 13th Amendment irrevocably
abolished slavery. The 14th constitutionalized the principles of birthright
citizenship and equality before the law. The 15th sought to guarantee the
right to vote for black men throughout the reunited nation. All three
empowered Congress to enforce their provisions, radically shifting the
balance of power from the states to the nation.

The amendments had flaws. The 13th allowed involuntary servitude to
continue for people convicted of crime, inadvertently opening the door to
the creation of a giant system of convict labor. The 14th mandated that a
state would lose part of its representation in the House of Representatives
if it barred groups of men from voting but imposed no penalty if it
disenfranchised women. The 15th allowed states to limit citizens’ right to
vote for reasons other than race.

Nonetheless, the amendments should be seen not simply as changes to an
existing structure but as a second American founding, which created a
fundamentally new Constitution. Taken together, as George William Curtis,
the editor of Harper’s Weekly, wrote at the time, they transformed a
government “for white men” into one “for mankind.” Yet they do not occupy
the prominent place in public consciousness of other key texts in our
history, nor are their authors, Representatives James Ashley, John Bingham
and others, widely known.

The amendments were written in broad, sometimes ambiguous language. A
series of interconnected questions about their precise meaning cried out
for resolution. Did the 13th prohibit only chattel bondage or extend to
other elements of slavery, including racial inequality? Did the 14th shield
Americans against violations of their rights only by state laws and
officials (the so-called state action doctrine), or also against the acts
of private individuals? Did the 15th prohibit laws that, even if
race-neutral on their face, were clearly intended to limit black men’s
right to vote?

The task of definition fell to the Supreme Court. And in a series of
decisions familiar today only to specialists (with the exception of Plessy)
— the Slaughter-House Cases, Cruikshank, Hall v. DeCuir, the Civil Rights
Cases, Plessy v. Ferguson, Giles v. Harris — the court drastically
restricted the scope of the second founding. As time went on, outright
racism became increasingly evident in the court’s decisions. The process
was gradual and never total, but the fate of the three amendments offers an
object lesson in what can happen to constitutional rights at the hands of
an unsympathetic, conservative Supreme Court.

The 13th Amendment quickly fell into disuse. The court assumed that its
purpose was fulfilled when chattel slavery vanished and rejected claims
that various forms of racial inequality that persisted amounted to “badges
of slavery” against which Congress could legislate. The justices reduced
the “privileges or immunities” guaranteed to American citizens in the 14th
to virtual insignificance, insisting that most rights still derived from
state, not national, citizenship. The court elevated state action into a
shibboleth, severely restricting federal protection of rights against the
assaults of violent individuals and mobs. It refused to intervene as the
South’s black men lost the right to vote. The justices mainly used the 14th
Amendment as a vehicle to protect the “liberty” of corporations, not that
of the former slaves, striking down state laws regulating economic activity
on the grounds that they violated the rights of “corporate personhood.”
Only John Marshall Harlan, black Americans’ most steadfast friend in the
federal judiciary during this period, consistently dissented from what he
called the court’s “entirely too narrow and artificial” reading of the
three amendments.

In the face of these decisions, those who sought to keep alive the
egalitarian promise of Reconstruction advanced a counterinterpretation of
the amended Constitution. In 1889, a group of black community leaders in
Baltimore calling themselves the Brotherhood of Liberty published “Justice
and Jurisprudence,” the first sustained critique of Supreme Court rulings
construing the amendments. Its message was clear: The promise of equal
citizenship had been “imperiled by judicial interpretation.” The book
explored the rights “public and private” that it claimed the amendments
were meant to protect. It assailed as unconstitutional racial
discrimination by transportation companies and in public accommodations,
the exclusion of blacks from skilled employment, housing segregation and
lack of access to education.

In his review of the book, the lawyer and political philosopher Thaddeus B.
Wakeman declared that too many constitutional rights had been lost when
they reached “that grave of liberty, the Supreme Court of the United
States.”

Why should we care today about these long-ago decisions? Because in a legal
environment that relies so heavily on precedent the shadow of the retreat
from Reconstruction still hangs over contemporary jurisprudence. To this
day, the 13th Amendment has almost never been invoked as a weapon against
the racism that formed so powerful a bulwark of American slavery. The right
to vote remains insecure. In 2013, the Supreme Court invalidated the 1965
Voting Rights Act’s requirement that jurisdictions with long histories of
discrimination in voting obtain prior federal approval before changing
suffrage rules. Many states have interpreted the decision as a green light
to enact laws to restrict the voting population in ways that predominantly
affect racial minorities and the poor.

Regarding the 14th Amendment, the record is mixed. In many ways, the
amendment has undergone an astonishing expansion, made possible by the fact
that its language applies to all Americans, not just blacks. The amendment
provided the basis for a series of decisions requiring states to act in
accordance with the liberties enumerated in the Bill of Rights — a
tremendous enhancement of the rights of all Americans. It was employed in
the pioneering legal arguments of Pauli Murray and Ruth Bader Ginsburg that
persuaded the courts to apply its Equal Protection Clause to discrimination
based on gender. It was recently invoked in affirming the right of gay and
lesbian couples to marry.

When it comes to the status of black Americans, however, the 14th
Amendment’s promise has never been fulfilled. Even at the height of the
civil rights movement, the Warren Court, which dismantled the legal edifice
of Jim Crow, could not bring itself to admit that for decades the justices
had been wrong. Thus, in upholding the Civil Rights Act of 1964, which
barred racial discrimination by businesses of all kinds, the court relied
on the original Constitution’s Interstate Commerce Clause — as if the act’s
purpose had been to facilitate the free flow of goods, not to end demeaning
discrimination against American citizens. Basing the ruling on the 14th
Amendment would have been more logical, but it would have required the
justices boldly to repudiate decades of rulings that the amendment can be
enforced only against actions by the states.

As the court has grown more conservative in recent years, it has become
more sympathetic to white plaintiffs complaining of reverse discrimination
than to blacks seeking assistance in overcoming the legacies of slavery and
Jim Crow. Some of the justices today view “racial classifications,” not
inequality, as the root of the country’s race problems. They therefore
oppose all race-conscious efforts to promote equality in education,
employment and other realms. The court today, like the justices in the late
19th century, uses the 14th Amendment to expand the rights of corporations,
as in the Citizens United decision that ended limits on political spending.
And the state action doctrine survives. For example, a 2000 decision,
United States v. Morrison, held that the Constitution authorizes federal
action to combat violence against women only if the violence is
“state-sponsored.”

Our Constitution is not self-enforcing, and progress is not necessarily
linear or permanent. From his threat to exclude the American-born children
of undocumented immigrants from the 14th Amendment principle of birthright
citizenship to his silence, or worse, in the face of a resurgent white
nationalism, President Trump has routinely exhibited behavior suggesting
that the pre-Reconstruction definition of citizenship based on whiteness
retains its power in parts of society today. But the Reconstruction
amendments survive, as does the interpretation of their meaning advanced by
Justice Harlan, the Brotherhood of Liberty and others. In a different
political environment their latent power may yet be employed to promote the
ideal of equal citizenship for all.

Eric Foner is an emeritus professor of history at Columbia and the author,
most recently, of “The Second Founding: How the Civil War and
Reconstruction Remade the Constitution,” from which this essay is adapted.

https://www.nytimes.com/2019/09/07/opinion/sunday/reconstruction-trump.html
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