Book review: “The Second Founding: How the Civil War and Reconstruction Remade the Constitution” by Eric Foner

Nearly four decades ago, historian Gary Wills explained how Abraham Lincoln used his Gettysburg Address to redefine — rededicate — the United States by enshrining the Declaration of Independence as the core statement of the nation, instead of the U.S. Constitution.

It was, as Wills details in his 1992 Pulitzer Prize-winning history Lincoln at Gettysburg: The Words That Remade America, a revolution carried out in the space of three minutes and in the speaking of 272 words. 

Before the Civil War, the national vision was rooted in the Constitution with its acceptance of slavery.  In his address, Lincoln proclaimed a higher ideal, a more humane and compassionate conception, one rooted in the Declaration with its clear, direct, unequivocal statement that “all men are created equal.”  (Today, of course, we have come to understand those words to mean “all people are created equal.”)

Yet, for all its stirring rhetoric, Lincoln’s speech was just a speech.  It would become esteemed as a shiny statement of national beliefs, but it carried no weight in law.  New laws and constitutional amendments were needed to make his vision a reality.

That’s the subject of Eric Foner’s 2019 The Second Founding: How the Civil War and Reconstruction Remade the Constitution, a work that also won the Pulitzer Prize:

During Reconstruction, the United States made its first attempt, flawed but truly remarkable for its time, to build an egalitarian society on the ashes of slavery.

“Highly contested”

Much about this transition from a slaveholding society to an egalitarian community still needs to be accomplished, and the nation’s failure to live up fully to the ideal of the Declaration of Independence and the Gettysburg Address continues to plague Americans, particularly African Americans. 

Nonetheless, a key legacy of that time and that initial effort are the three Constitutional amendments adopted by Congress and ratified by the states:

• The Thirteenth, which irrevocably abolished slavery.
• The Fourteenth, which wove into the Constitution the principles of birthright citizenship and equality before the law.
• The Fifteenth, which aimed to ensure Black male suffrage throughout the U.S.

Only some of the goals of the proponents of these amendments were reached.  Some were achieved and then taken away.  Still others have been blocked, ignored, crippled, and, in practice, renounced.

Foner’s tale about these amendments is one of bitter political clashes over how they were to be worded and of efforts by Southern Whites to blunt, subvert and evade the new national mandates.  It is also the story of Northern politicians who engaged in deal-making with those Southern Whites for party advantage, gutting much of the power of the new laws.

And, maybe most of all, it is an account of how, for more than a century, the U.S. Supreme Court has taken such a “narrow and artificial” approach to interpreting these amendments, as one Justice commented, as to render them much weaker than they were designed to be — and, in Foner’s reading, in fact, are:

The country has come a long way toward fulfilling the agenda of Reconstruction, although deep inequalities remain.  Yet key elements of the second founding, including birthright citizenship, equal protection of the laws, and the right to vote, remain highly contested.

“A restricted application”

If Lincoln’s speech brought about an immediate revolution in the nation’s conception of itself, at least on the level of ideals, the second founding embodied in the three Reconstruction amendments was a slow-motion revolt that has been taking place for a century and a half and that has been slowed by opponents engaging in myriad forms of guerilla political tactics aimed at retaining white supremacy.

Foner notes that abolitionists and many Republicans involved in the crafting of the amendments saw them as “the beginning of an even deeper transformation — what today would be called ‘regime change,’ the substitution of a regime committed to the idea of equality for the previous proslavery one.”

However, the tendency of the Supreme Court for a century to narrowly interpret these amendments, often grounded in a belief in or desire for the superiority of Whites, brought about a retreat from the objective of equal citizenship and from the use of federal power to ensure equality.  Since 1950, the Court has been more willing to employ the amendments to level the playing field for all Americans.  Nonetheless, such efforts are hamstrung by those earlier Court decisions.

Historical interpretation [of the Reconstruction period] has changed dramatically, but earlier decisions resting in part on a now repudiated understanding of the era remain embedded in established jurisprudence. 

The recent history of the amendments reveals their ongoing expansion to protect the rights of new groups — most recently, gay men and women, and gun owners — yet a restricted application in questions involving race.  This reflects, in part, the enduring impact of earlier decisions limiting the amendments’ scope and enforcement.

Birthright citizenship

Foner, who has been studying the Reconstruction for more than half a century, is the pre-eminent historian on the subject.  In addition to scores of articles on the era, he has published more than two dozen books, totaling an estimated 10,000 pages.

In The Second Founding, he has condensed all that scholarship into 176 pages of text with another 27 pages of notes.

The result is a book that, because of Foner’s writing skill, is clear and accessible, and also, because of his erudition, dense with ideas, context, background, events and nuance. 

Reading the book, I often had the sense that behind each sentence were dozens of pages of Foner’s earlier writings and hundreds of pages of his research.  Nonetheless, The Second Founding is rich in anecdote, quotation and insight, such as here in Foner’s discussion of the Fourteenth Amendment’s establishment, for the first time in the nation’s history and law, of citizenship upon birth on American soil:

Adopted as part of the effort to purge the United States of the legacy of slavery, birthright citizenship, with which the Fourteenth Amendment begins, remains an eloquent statement about the nature of American society, a powerful force for assimilation of the children of immigrants, and a repudiation of a long history of racism.

“A dramatic repudiation”

Foner notes that this principle didn’t stop the nation and its leaders from violating the constitutional rights of Japanese Americans interned during World War II and for African Americans during the Jim Crow era.

Nonetheless, putting birthright citizenship into the Constitution represented a dramatic repudiation of the powerful tradition of equating citizenship with whiteness, a doctrine built into the naturalization process from the outset and constitutionalized by the Supreme Court in Dred Scott. Free black communities had long lived in a kind of legal limbo, their status as Americans constantly open to question.

Indeed, Foner points out that, prior to Reconstruction, major national leaders, such as Lincoln and Thomas Jefferson, had spoken of Blacks as permanent aliens who, to save everyone trouble, might be colonized outside of the United States.

Citizens of the nation

So, in institutionalizing birthright citizenship, the amendment had rejected doctrines that went back to the nation’s initial founding and earlier.  And it brought about a startling change in such a supremely human act as giving birth.

The first sentence of the Fourteenth Amendment also marked a radical change in the role of black women within American society.  As slaves, they gave birth to property; now their children were citizens of the nation, rather than economic assets of white southerners.

There is much change that must still come before the United States is a fully egalitarian country.  But that simple change for a black woman — from the creator of property to the mother of a citizen — says a great deal about how much was accomplished in just that single sentence.

Patrick T. Reardon

5.4.21