The reason I suspect that the Reconstruction period in American history, with the resulting 13th, 14th, and 15th Amendments, and its rightful claim as the Second Founding, doesn’t have the sheen of reverence the founding period in American history does, or doesn’t still resonate with many Americans, is twofold. First, I don’t think that era is well-taught. Most of us learn about the Civil War, and some unfortunately, thanks to the Dunning School, learn it with Lost Cause apologia imbued within its telling, but the Reconstruction period is often a footnote before moving along into the 20th century. Secondly, despite the limited learning around the Reconstruction, I think people largely understand that it seemed to have failed, taking another 100 years with a “second Reconstruction,” as it were, to ensure full freedom and equality before the law for African Americans. If something is seen as having failed, it obviously isn’t going to be given its due reverence. I think Eric Foner’s 2019 novel, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, makes a convincing case in a brief, but elucidating book, that warts and all, the Reconstruction period was indeed a Second Founding, and that this Second Founding still influences our discussions today, as well as our jurisprudence (primarily the 14th Amendment and specifically, its Equal Protection Clause). As with the first founding, the Second Founding’s imperfections would still lay the groundwork for future Americans of all stripes to compel the federal government to recognize their rights and due equality before the law.
I can’t think of a more striking microcosm of how revolutionary the Reconstruction period was for America (and indeed, the world, owing to the biracial democracy created so shortly after 4 million people were enslaved) than the fact that the second ever African American Senator elected to the United States Congress in 1875, Blanche K. Bruce, of Mississippi, was a former slave. That fact feels like the most American kind of story: The existence of slavery, being a slave, overthrowing the institution of slavery, and then obtaining political power shortly thereafter as a former slave. That is the complicated history of America, where within our historic documents, including the ones manifest from the Civil War, are the power to enslave and the power to liberate. As is often the case with mere “parchment paper,” it really comes down to the will of the body politic and will of the people — more precisely, whether those in power and those who put them in power will support the cause of freedom and equality, and perhaps most importantly, if they will follow-through with enforcement.
The latter, as I understand Foner’s book, is the real story of Reconstruction. Essentially, in rather short order relative to a bloody Civil War, the North lost its appetite for doing more to help recently freed slaves. If I could summarize the Northern position: We freed you, what more do you want? I’m being rather flippant, and I’m not discounting a lot of the good was done, such as the aforementioned ascendancy to political power the formerly enslaved enjoined, the fact of the 13th Amendment abolishing slavery, enfranchising millions of Africans Americans (men, obviously), and the Freedmen’s Bureau setting up public education and the like. To say the least, ending chattel slavery and its constituent parts was a big deal, but the North lost the will to deal with the effects of slavery still operational and ongoing, much as in 2023, we still lack the will to properly reckon with the vestiges of slavery. And of course, I love the story of President Grant pretty much eradicating the first iteration of the Ku-Klux-Klan, but even that — dealing with white supremacist terrorism targeting Republican leaders, white supporters of African Americans, and of course, most predominantly, African Americans — waned over time.
In effect, as it regarded the political, social, and cultural edifice in the South only a few short decades after the Civil War and until the Second Reconstruction in the 1950s and 1960s, I think it’s fair to say that the Confederacy may have lost the Civil War, but they won the hearts and minds of white American for the next 100 years and counting. White supremacy remained the de facto law of the land in political and social life, and as Foner explains, the actual makings of jurisprudence (some of which is still with us!), thanks to the Supreme Court, who benched numerous racists (including a former Confederate soldier) and feared that the federal government was attempting to take too much power away from the states.
That’s the inversion at the heart of the Second Founding: the first founding was all about what the federal government could not, so as not to encroach upon individuals, whereas the Second Founding was all about what the federal government ought to do to ensure state and local governments did not encroach upon, individual rights. Or as Senator Charles Sumner, a strident anti-slavery statesman, put it, the provisions for enforcements within the the three Reconstruction Amendments made the federal government for the first time, the “custodian of freedom.” The Second Founding completely rethought the relationship between the federal government and its citizens (national in scope), and the federal government and the states. But again, the North completely lost an appetite for continually “interfering” in the South’s affairs, which is how the Black Codes arose shortly after the Civil War, how blacks lost much of their recently secured rights, including to vote, and how Jim Crow followed well into the 20th century.
What are freedom and equality? Is it enough to not be enslaved? Or are persons owed the full privileges and immunities of a white person, a full citizen of the United States. That is, if an African American is treated like a “normal” citizen in a Northern state, but not a Southern state, is he really a citizen of the United States, as guaranteed by the Constitution? These were the questions underwriting the Second Founding, and unfortunately, even the Radical Republicans of the day often stopped short of granting any kind of equal footing with whites, especially in the social realm. In addition, with the suffrage of African American men fully on the table, feminist abolitionists of the time thought the moment was ripe for women to gain the vote, too. Alas, it was not meant to be, owing to sexism and hypocrisy about the role of women in society (to be subservient to men and maintain domestic life) and wouldn’t for an additional half century. Radicals of the time also stopped short of applying equality of races to the Chinese, Irish Catholics, and other groups of people.
Aside from the Equal Protection Clause of the 14th Amendment, and of course, who gets to vote and how still remains a volatile issue, the most relevant and still-discussed aspect of the Reconstruction Amendments is also in the 14th Amendment’s Section 1 opening sentence, “All persons born or naturalized in the United States, and subjection to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” otherwise known as the Citizenship Clause. The idea of birthright citizenship was not only radical departure from American political and legal thinking before the Civil War, but the world over. To me, it’s one of the most beautiful aspects ever manifest in our history: We are a country whose citizenship is not defined by race, ethnicity, religion, or blood as others were, necessarily creating a second-class of citizen. Again, enforcement of that Clause was another matter, but at least it provided the groundwork for future generations and robust immigration.
The reason we needed 100 more years of “agitation” for the cause of liberty and equality and a Second Reconstruction is because of how Justice Joseph P. Bradley (on the bench from 1870 to 1892) eloquently phrased the entire issue facing the nation after the Civil War, “Slavery extended its influence in every direction, depressing and disenfranchising the slave in his race in every possible way. Abolition meant not merely striking off the fetters, but destroying the incidents and consequences of slavery.”
Radical Republicans, longtime abolitionists, and of course, the scores of African American men, women, and children who fought for their freedom and equality before the law in equal standing with the white man, achieved historic feats with Reconstruction, enshrining abolition, equal rights, and black male suffrage (among other provisions) into the Constitution for the first time and rethinking federalism wholesale, but the will wasn’t there from large swaths of white America to see the project through. As Bradley said, it wasn’t enough to unchain the black man and expect them to ably survive in a body politic, socioeconomic environment, and culture explicitly erected against their advancement.
We still struggle with understanding that today. It is not enough to strike off the fetters of Jim Crow and segregation (in schooling, housing, public spaces, transportation, etc.) and ensure the suffrage of African Americans, all “fetters” within living memory of those alive today, mind you; we necessarily needed to “destroy the incidents and consequences” of Jim Crow, segregation, and the long-active affronts to African American suffrage. We are, indeed, living with the vestiges of our lack of will to address those “incidents and consequences.”
If, like me, you’re fascinated by the Civil War and Reconstruction era of American history, but also like me, don’t know as much as you’d like to know about it, I’d highly recommend Eric Foner’s book. Like I mentioned, it’s a relatively short read, with chapters devoted to each amendment and the discussions that brought them to final ratification, and then an overview of how the Supreme Court handled challenges to state laws that evoked those amendments. Throughout, you’ll undoubtedly recognize echoes of those discussions in today’s body politic, and you’ll see the relevance of those amendments, especially the 14th Amendment (but also the 13th, particularly the provision of involuntary servitude, if you’re duly convicted) to today. History matters, and it certainly influences the present.
Milam's Musings 