LRB, Vol. 42 No. 15 · 30 July 2020
Racist Litter
Randall Kennedy
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
In may 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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