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

Abraham Lincoln (1809-1865) served as 16th president of the United States. Before his presidency, Lincoln served as a state legislator in Illinois and was elected to the US House of Representatives in 1846. Elected in 1860 as the first Republican president on a platform of anti-slavery expansion, his election prompted the secession of several Southern states, leading to the outbreak of the Civil War. While Lincoln only promised to stop the spread of slavery, Southerners saw this as an existential threat to their economy and way of life.

Lincoln faced the task of preserving the Union, managing the war effort, and addressing the issue of slavery. He issued the Emancipation Proclamation in 1863, which declared that all enslaved people in Confederate-held territory were to be set free. This act added a moral dimension to the war, shifting the goal from maintaining the Union to abolishing slavery. His original plan was colonization and compensation: creating a colony outside the US for formerly enslaved individuals, and giving economic compensation for slaveholders. Lincoln originally hesitated to support constitutional changes to abolish slavery, but his position evolved when he needed to keep Republican support in the election of 1864. After his re-election, Lincoln interpreted his victory as a mandate from the public and urged the House to pass the 13th Amendment.

Lincoln was assassinated in 1865 by actor and Confederate sympathizer John Wilkes Booth while he watched a play at Ford’s Theatre in Washington, DC. His death was part of a failed conspiracy to rekindle the Confederate cause after the Civil War’s end.

Charles Sumner (1811-1874) was a Massachusetts Republican who served in Congress during and after the Civil War. He is perhaps best known for his 1856 anti-slavery speech in the Senate, which provoked a brutal physical attack by Preston Brooks of South Carolina. As a leader of the Radical Republicans, Sumner pushed for aggressive measures to transform the South’s social, economic, and political systems to ensure true equality and prevent the former Confederate states from reinstating a society based on racial subjugation. Like Frederick Douglass, Sumner believed that abolition marked a beginning of the struggle for Black rights, not the end.

Sumner played a key role in the shaping of the 14th Amendment. Throughout the debates on the amendment, Sumner was not afraid to reject proposals and join the Democrats if he thought the wording was insufficient. He was adamant about the inclusion of birthright citizenship and the inclusion of the Equal Protection Clause. He saw citizenship as foundational in guaranteeing the civil liberties of all Americans and crucial for protecting African Americans.

Sumner was also vital in the promotion and passage of the 15th Amendment. He saw suffrage as essential for the protection of African Americans’ rights and for their ability to participate fully in the political life of the nation. Sumner argued that without the vote, the legal equality promised by the 14th Amendment would be ineffectual. To this end, he was also an architect of the Civil Rights Act of 1875.

Born into slavery in Maryland, Frederick Douglass (1818-1895) escaped in 1838 and rose to become one of the most influential abolitionists and civil rights advocates of the 19th century. Douglass authored several influential works, including his 1845 autobiography, Narrative of the Life of Frederick Douglass, an American Slave, which played a significant role in shaping public opinion on abolition. He continued to document his life and the broader abolition movement in subsequent works. His interpretations of the Constitution were foundational in shaping the debate about what it meant to be free and equal in America.

In The Second Founding, Douglass is portrayed not just as a commentator on historical developments, but as an active participant in the political and social upheavals of his time. After the end of the Civil War, Douglass worked closely with politicians to secure Black rights. This began with his fight for the 13th Amendment to abolish slavery although he made it very clear that abolition was only the beginning. In his “Mission of the War” speech, he declared the end of slavery would mean “full equality before the law and suffrage for Black men” (17). While he did not hold office, he petitioned members of Congress such as Charles Sumner to advocate for Black rights. He also worked with women’s suffrage groups to gain their support, persuading them that they should focus on the attainable goal of Black men’s suffrage to set a precedent for their rights. His primary concern after abolition was securing the right to vote, finally declaring victory after the passage of the 15th Amendment.

John Marshall Harlan (1833-1911) was appointed to the Supreme Court in 1877 by Rutherford B. Hayes. He was the only former slaveholder on the Court during his tenure and originally opposed civil rights measures. However, over time he became a champion of Black rights. He became most famous for his dissents in cases that upheld state-imposed racial segregation and other practices that denied civil rights to African Americans. His most famous dissent was in the 1896 case of Plessy v. Ferguson, where the majority of the court upheld Louisiana’s law requiring racial segregation in public facilities. Harlan maintained that the Constitution is “color-blind” and that all citizens are equal before the law. He adopted a broad view of the Reconstruction amendments, whereas most of his colleagues had a very narrow interpretation of the 14th Amendment in particular. While he did not push for complete equality, he supported the rights that Black people needed to become full citizens. This included the right to “public transportation and accommodations” (153), which even some Republicans viewed as extreme.

Justice Joseph P. Bradley (1813-1892) served on the Supreme Court from 1870 to 1892. At the beginning of his tenure, Bradley adopted a wide view of the protections of the 13th Amendment. In the case Blyew v. United States, he stated that limiting Black people’s ability to testify in court amounted to “brand[ing] them with the badge of slavery” (132). However, he reversed his opinion in later cases. He emphasized a strong federal government, yet he was cautious about extending federal reach into the regulation of private conduct. This perspective was evident in the Slaughterhouse Cases, in which he ruled that “states could not interfere with the right to earn a living” (137).

In 1883, he authored the majority opinion in the Civil Rights Cases, which declared the Civil Rights Act of 1875 unconstitutional. The act had prohibited racial discrimination in public accommodations and facilities, and Bradley’s opinion held that the 14th Amendment did not give Congress the authority to regulate private acts of discrimination. Though he tended to rule in favor of private enterprise over the state, he ruled against women’s rights in the case of Bradwell v. Illinois. He claimed that women were naturally subservient to men and therefore did not have the same rights and privileges.