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

Significant progress has been made in achieving the Reconstruction agenda, but substantial inequalities still exist. Fundamental principles of the second founding, such as birthright citizenship, equal protection under the law, and voting rights, continue to face challenges and spark debates. Despite progress, previous Supreme Court decisions that limited the scope of the 13th, 14th, and 15th Amendments based on a restrictive interpretation still influence current legal standards and have not been overturned.

Apart from early 20th-century cases that struck down state peonage laws, there is minimal judicial precedent interpreting the 13th Amendment. It is seen as a “dead letter” that achieved its purpose with abolition, and its power has rarely been used since. The 15th Amendment also plays a limited role in contemporary law but was crucial in legitimizing the Voting Rights Act of 1965. This act significantly restored voting rights to many Black Southerners, but the right to vote continues to be a highly contested issue. A recent decision regarding the 15th Amendment came in 2013 with the Shelby County, Alabama, case. The Supreme Court invalidated the Voting Rights Act’s preclearance requirement, arguing it was an overreach of federal power and outdated in treating states with histories of discrimination as if they would repeat their past actions. This decision reflected a broader judicial focus on traditional federalism as envisioned by the 18th-century framers, largely overlooking the transformative impact of Reconstruction on federal-state relations.

Out of the three Reconstruction amendments, the 14th remains the most hotly debated in modern times. The amendment’s concept of incorporation, which mandates states to comply with the Bill of Rights, has largely been realized through various Supreme Court decisions over time. Contrary to original expectations by John A. Bingham, these rights were applied to the states through the Due Process Clause rather than the Privileges or Immunities Clause. Incorporation enhanced the protection of civil liberties against state and local infringement, but the 14th Amendment’s goals for racial equality for Black Americans have not been fully realized. The Warren Court of the 1950s and 1960s played a crucial role in dismantling legal segregation though it did not directly address the series of decisions that had historically limited national power over individual rights, except for overturning Plessy v. Ferguson. Even during the civil rights movement’s peak, the Supreme Court did not acknowledge that its earlier rulings on civil rights might have been incorrect for over 80 years.

The Supreme Court has upheld laws punishing discriminatory actions by individuals and businesses but has not dismissed the “state action” doctrine. For laws like the Civil Rights Act of 1964, the Court has often relied on the Interstate Commerce Clause instead of the Reconstruction amendments to justify anti-discrimination measures. The 2009 federal “hate crimes” law was also based on the Commerce Clause, with its constitutionality still untested by the Supreme Court. The reliance on the Commerce Clause has been criticized as a workaround due to the court’s narrow interpretation of the Reconstruction amendments, which avoids overturning judicial precedents dating back to the 1870s. Foner believes that this approach fails to reflect the true motivations behind civil rights legislation, which aimed to secure equality and not just regulate commerce.

In spite of laws against overt racial discrimination, the “state action” interpretation of the 14th Amendment limits its effectiveness. This interpretation has led to court rulings that prevent race from being considered in voluntary school desegregation efforts, attributing modern segregation to “private choices” and residential patterns rather than to explicit legal mandates. The Equal Protection Clause of the 14th Amendment has been applied far beyond its initial Reconstruction-era intentions, though its impact on African Americans has been limited. It facilitated advancements against gender discrimination in the 1970s and upheld rights for children of undocumented immigrants in 1982. Combined with the Due Process Clause, it formed the basis for the 2015 decision requiring states to allow gay marriage. The Equal Protection Clause has enabled Americans of various backgrounds to combat discrimination and enhance their legal rights.

The Supreme Court has recently been more receptive to claims of “reverse discrimination” from white plaintiffs than to African Americans addressing the consequences of historical racism. The court often perceives racial classifications, whether intended to remedy or perpetuate inequality, as the fundamental issue in the nation’s racial challenges. This perspective, shaped more by current politics than the historical context of Reconstruction, has contributed to a rollback of race-conscious equality measures. The birthright citizenship clause of the 14th Amendment has sparked controversy, particularly regarding children of undocumented immigrants born in the US. In 2018, President Trump suggested that he could override this constitutional provision via executive order. This has raised concerns about potential further constitutional challenges.

The Reconstruction amendments could still be used in the modern era for a more robust enforcement of constitutional rights. The 13th Amendment could be revitalized to combat ongoing socioeconomic disparities that have their roots in slavery. The 14th Amendment’s clause on privileges or immunities could be reinterpreted to include fundamental rights that were denied by slavery, such as access to education and fair wages. The right to vote could be universally acknowledged as an inherent right of all adult citizens. Foner argues that racial equality initiatives should not have to depend on the Commerce Clause, given more direct and potent options available through Reconstruction amendments. The mixed outcomes of these amendments illustrate that constitutional protections can sometimes be ineffective against violations of liberties.