The Second Founding: How the Civil War and Reconstruction Remade the Constitution

Eric Foner -The Second Founding: How the Civil War and Reconstruction Remade the Constitution
In his new book The Second Founding, Eric Foner - the premier historian of the Reconstruction era - works to demonstrate that the three post civil war amendments to the Constitution were a re-founding of the nation.  The 13th abolished slavery, the 14th provided for birthright citizenship and promised equal protection of the law and Due Process, while the 15th barred discrimination in voting rights on the basis of race.  Foner seeks to revive the jurisprudence of the post civil war leaders.  They sought to fulfill the promise of the Declaration of Independence that “all men are created equal..endowed by their creator with certain inalienable rights - life liberty, and the pursuit of happiness". 

The Thirteenth Amendment legally abolished slavery in 1865.  Article 2 declared “ Congress shall have power to enforce this article by appropriate legislation.”  Congress...not the states.  The Congress recognized that the defeat of the secessionists and the new Amendment had transformed the relationship between the states and the national government.  Four million slaves had become citizens.

The Fourteenth Amendment in 1868 obligated the states to provide equal protection of the laws and forbade any state to "abridge the privileges or immunities" of citizens of the United States".  The phrasing of the amendment - “No state shall” was the syntactic handle for the post-Civil War Reconstruction era Supreme Court to sap it of much of its power.  Only `state action' was proscribed.  Private discrimination was not and could not be reached by national government power, as the court expounded the Amendment.  Almost 100 years of systematic, largely sanctioned racial discrimination followed.  
In 1968 in Jones v. Alfred Mayer Co. the Supreme Court briefly resurrected the Thirteenth, declaring that it barred the private discrimination of the refusal of a real estate company to sell a house to a black man.  For one hundred years the Civil Rights Act of 1866 - enforcing the 13th Amendment - had lain dormant.   It provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. 42 U.S.C. 1982

When the black movement for civil rights finally won the Civil Rights Act of 1964 it was implausibly justified by the power of Congress to regulate interstate commerce - rather than in the duty of the states to assure every person the equal protection of the laws.

The language of the Fourteenth Amendment is plain enough:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But in the hands of the justices of the United States Supreme Court the opening phrase “No state shall...” was interpreted to bar only state action - not state failure, or inaction that left persons without the equal protection of the laws.  In the worst of cases Cruikshank v. United States  (1876) six “private” murderers -of  the dozens of black defenders at the Colfax, Louisiana Courthouse - were convicted of violation of the Ku Klux Klan Act of 1870 [aka the Enforcement Act].   But the killers went free because the murderous acts alleged were within the jurisdiction of the State, not the United States.  The indictment was dismissed because the rights violated - life - were not federal but rather natural rights protected by the sovereign states.  The 1866 act was said to be of no avail because the indictment had not specified the racial motivation of the killers.

It is not easy at this moment to imagine a rebirth of the desire to see the nation finally reconstructed.  But maybe this IS the moment. - GWC