The Second Founding

A Book Review

During the oral arguments in Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College, the case where the Supreme Court is highly likely to end affirmative action in education as we know it, Chief Justice John Roberts stated “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination, and that’s why it’s a matter of – of considerable concern.” Implied in this question is a historical claim the Fourteenth Amendment to the United States constitution was adopted to create a “color-blind constitution.”

That argument of a color-blind constitution was more explicit by the attorney for those challenging Harvard’s policies:

In terms of the original meaning of the Fourteenth Amendment, the best source on this I’ve ever read is the United States’ brief on reargument in Brown. It painstakingly details the legislative history and how the framers of the Fourteenth Amendment saw it as a ban on all racial classifications. Also, the – everyone knows that the impetus for the Fourteenth Amendment was to constitutionalize the Civil Rights Act of 1866. The Civil Rights Act of 1866 is a series of bans on racial discrimination. It’s a series of color-blind measures and requirements.

But are these points correct? Did we fight a Civil War to eliminate racial discrimination? Was the purpose of the Fourteenth Amendment to establish a “color-blind constitution”? Is it true that “everyone knows” that the Fourteenth Amendment was trying to constitutionalize the Civil Rights Act of 1866?

History, as it turns out, is more complicated than the advocates suggest.

Indeed, when reading the The Second Founding, the latest book by Eric Foner, who is one of the leading historians of the Reconstruction Era, you quickly discover that the Thirteenth, Fourteenth, and Fifteenth amendments represent a deeply complex soup of goals. As he 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.

Foner’s work reveals how the framers of the Reconstruction amendments contemplated radical departures from the constitutional framework that preceded it, and how those expectations were shattered over time. Again, as Foner writes:

In the chapters that follow my purpose is not so much to identify the one “true” intent of the Reconstruction amendments, as to identify the range of ideas that contributed to the second founding; to explore the rapid evolution of thinking in which previously distinct categories of natural, civil, political, and social rights merged into a more diffuse, more modern idea of citizens’ rights that included most or all of them; and to suggest that more robust interpretations of the amendments are possible, as plausible, if not more so, in terms of the historical record, than how the Supreme Court has in fact construed them.

The book covers a lot of ground in a relatively quick read. And, for me anyway, Foner accomplished his mission of helping illuminate the wide diversity of perspectives and goals in the framers of the Reconstruction amendments.

For example, although modern readers of the Fourteenth Amendment predominantly focus on section one (or in these unusual times, section three), few focus on section two. That’s not especially surprising given that the section has never been enforced.

At the time, however, what is now section two was the primary focus of the committee considering constitutional amendments. As Foner writes:

The first version of a Fourteenth Amendment to emerge from the committee was an attempt to finesse the black suffrage issue while dealing with an ironic political consequence of the abolition of slavery. Now that all blacks were free, the Constitution’s Three-Fifths Clause became inoperative. In the next reapportionment allocating membership in the House of Representatives and votes in the Electoral College, all blacks would be counted as part of each state’s population. The southern states would thus enjoy added representation, giving them, as one congressman put it, “an undue and unjust amount of political power in the government.”

An ironic political consequence, indeed, that the Republican project of abolishing slavery would favor southern Democrats in a future Congress and White House. But actually solving for that irony created other problems for Republican drafters:

Seventeen proposals to restructure congressional representation came before the Joint Committee. The simplest way of dealing with this problem, Radicals insisted, was to require the states to enfranchise black men. This would ensure that the Slave Power would no longer control southern politics. Moderates, however, believed such an amendment would never secure ratification. Another option was to base representation on voters, not total population, as [Rep. Thaddeus] Stevens had proposed. This would leave suffrage requirements in the hands of the states. It would encourage the Johnson governments to enfranchise their black populations or leave those states with reduced power in Washington (a loss of one-third of their congressmen according to one estimate). But as Representative James G. Blaine of Maine pointed out early in January 1866, western migration was skewed toward men, and thus basing representation on voters would result in a shift of power away from eastern states, which had a higher percentage of women in their populations. The proposal, Blaine warned, might also unleash an “unseemly scramble for voters,” including the enfranchisement of women, which would double a state’s representation in Congress.

In other words (and unsurprising to the modern observer), members of Congress were keenly focused on future election cycles and the Fourteenth Amendment was (in part) an effort to maintain a structural advantage for the Republicans. And the compromise they settled on reflected the prejudices of the time, the idealism of reformers, and the realpolitik calculus of what could get enacted and ratified.

In the end, as Foner notes, it is a political question about whether, legally, it matters what the authors of the Reconstruction Era thought they were doing when they engaged in a “constitutional revolution” by passing the Thirteenth, Fourteenth, and Fifteenth amendments.

From a purely historical perspective, though, his book reveals just how messy progress can look. In the moment, and even 150 years later.