The Second Founding

This excellent book by Professor Eric Foner discusses the Reconstruction Amendments, which are the 13th, 14th, and 15th Amendments. He tells us, “The Civil War and the Reconstruction period that followed form the pivotal era of American history. The war destroyed the institution of slavery, ensured the survival of the Union, and set in motion economic and political changes that laid the foundation for the modern nation. During Reconstruction, the United States made its first attempt, flawed but truly remarkable for its time, to build an egalitarian society on the ashes of slavery. Some of the problems of those years haunt American society today–vast inequalities of wealth and power, terrorist violence, aggressive racism. But perhaps the era’s most tangible legacies are the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.” [p. xix]

Professor Foner goes on to tell us, “All three amendments end with a clause empowering Congress to enforce their provisions, guaranteeing that Reconstruction would be an ongoing 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 words ‘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 reinforced a new era of individual rights consciousness among Americans of all races and backgrounds. So profound were these changes that the amendments should be seen not simply as an alteration of an existing structure but as a ‘second founding,’ a ‘constitutional revolution,’ in the words of Republican leader Carl Schurz, that created a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.” [p. xx]

According to Professor Foner, “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. … But even if we are unaware of it, Reconstruction remains part of our lives, or to put it another way, key issues confronting American society today are in some ways Reconstruction questions. … It is impossible to understand American society today without knowing something about the Reconstruction period a century and a half ago.” [pp. xx-xxi]

“Reconstruction,” Professor Foner tells us, “is also a prime example of what we sometimes call the politics of history–the ways historical interpretation both reflects and helps to shape the time in which the historian is writing.” [p. xxi] He cites the racist Dunning School of Reconstruction interpretation as an example. He identifies some positive aspects of their overall scholarship, then tells us, “Nevertheless, ingrained racism undermined the value of the Dunning School’s scholarship. Convinced that blacks lacked the capacity to participate intelligently in political democracy, they condemned Reconstruction, in the words of Dunning’s Columbia colleague John W. Burgess, for imposing the rule of ‘uncivilized Negroes’ over the whites of the South, inevitably producing an orgy of corruption and mismanagement. This portrait of Reconstruction became part of the Lost Cause ideology that permeated southern culture in the first part of the twentieth century and was reflected in the proliferation of Confederate monuments that still dot the southern landscape. … Along with a nostalgic image of the Confederacy, the idea of the Lost Cause rested on a view of slavery as a benign ,paternalistic institution and of Reconstruction as a time of ‘Negro rule’ from which the South was rescued by the heroic actions of the self-styled Redeemers who restored white supremacy. … This was a portrait of Reconstruction meant to justify the times in which it was written. It provided an intellectual foundation for Jim Crow, the racial system of the South and in many ways the United States as a whole, from the 1890s until the civil rights era of the 1960s.” [p. xxii]

As Professor Foner puts it, “For many years, the outlook of the Dunning School was also incorporated into Supreme Court decisions that interpreted the Reconstruction amendments, producing a jurisprudence that allowed the white South essentially to abrogate many of the provisions of the second founding.” [p. xxiii] “The civil rights revolution,” he says, “destroyed the pillars of the Dunning School, especially its overt racism, and historians completely overhauled the interpretation of Reconstruction. If the era was tragic, we now think, it was not because it was attempted but because in significant ways it failed, leaving to subsequent generations the difficult problem of racial justice. Today most historians see Reconstruction, as W. E. B. Du Bois argued three-quarters of a century ago, as a key moment in the history of democracy and its overthrow as a setback for the democratic principle in the United States and throughout the world. This outlook casts the second founding in a different light.” [p. xxiv]

Professor Foner then writes, “For the historian, seeking to understand the purposes of the Reconstruction amendments is not the same as attempting to identify, as a matter of jurisprudence, the ‘original intent’ of those who drafted and voted on them or the original meaning of the language used. Whether the courts should base decisions on ‘originalism’ is a political, not a historical, question. But no historian believes that any important document possesses a single intent or meaning. Numerous motives inspired the constitutional amendments, including genuine idealism, the desire to secure permanently the North’s victory in the Civil War, and partisan advantage. Even on its own terms, the quest for original meaning often leads to disappointment. Members of Congress during the Civil War ad Reconstruction had the irritating habit of ot debating at length, or at all, concerns that have driven recent jurisprudence relating to the amendments, among them school segregation, affirmative action, marriage equality, and corporate personhood. Moreover, as in all crises, the meaning of key concepts embedded in the Reconstruction amendments such as citizenship, liberty, equality, rights, and the proper location of political authority–ideas that are inherently contested–were themselves in flux. In other words, the creation of meaning is an ongoing process. Freezing the amendments at the moment of their ratification misses this dynamic quality.” [pp. xxiv-xxv] “The Reconstruction amendments,” he continues, “can only be understood in terms of the historical circumstances and ideological context in which they were enacted. These include how they were approved by Congress and the states; what those who framed, debated, and ratified them hoped to accomplish; and how other Americans understood and attempted to use them.” [p. xxv]

Professor Foner looks at each of the three amendments in order, placing each one in its historical context. Additionally, he includes a chapter on how the courts, especially the Supreme Court, have interpreted and in many cases limited the reach and effectiveness of these amendments, though we do find out there is not much jurisprudence about the Thirteenth Amendment. There is plenty of jurisprudence about the Fourteenth Amendment, with the Fifteenth Amendment coming in second. In the Appendix Professor Foner considers what Freedom is and the gives us an overview of general Reconstruction history. The book is well researched and very well written. It’s a good read with a lot of information for us. I can highly recommend it for students of this era.

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