An Interview with Eric Foner about his new book: The Second Founding: How the Civil War and Reconstruction Remade the Constitution
Sara Gabbard: Please explain the significance of the fact that “Congress shall have power to enforce this article by appropriate legislation” was added to the 13th, 14th, and 15th Amendments.
Eric Foner: The fact that each of the Reconstruction amendments ends with a section empowering Congress to enforce its provisions illustrates the radical change in the federal system brought about by the Civil War. The Bill of Rights was almost universally understood to apply only to the national government, not the states. The First Amendment begins with the words “Congress shall make no law …” It reflected the widespread assumption in the founding era that the greatest danger to liberty was a too-powerful national state. The 13th, 14th, and 15th Amendments all restrain the states, not the federal government. They reflect the emergence of the idea that the nation state is, in the words of Charles Sumner, the “custodian of freedom” and that the danger to Americans’ rights comes from the state government. Thus the three Amendments reflect a sea change in the balance of power between the national and state governments, and a new conception of where the ultimate responsibility lies for protecting the rights of all Americans.
SG: Please give an example of a Supreme Court ruling which furthered the original intent of the Reconstruction Amendments.
EF: There were very few such rulings until the era of the Warren Court. Mostly, the Supreme Court whittled away at the rights the Reconstruction Amendments were intended to protect. The Supreme Court decisions barring racial segregation in education, and upholding the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were certainly in tune with what the framers of the Reconstruction Amendments hoped to accomplish (even though in the former case, the Court based its decision on the original Constitution’s commerce clause, rather than the 14th Amendment). It was not willing to repudiate a long train of decisions which, wrongly in my opinion, declared that the protections of the 14th Amendment applied only to “state action” – discriminatory state laws and discriminatory action by state officials – not the acts of private individuals that undercut the rights of other Americans.
SG: A decision that was an impediment to progress?
EF: Numerous Supreme Court decisions of the late 19th century were impediments to progress toward racial justice. The Slaughterhouse Cases eviscerated the clause of the 14th Amendment barring states from abridging the “privileges or immunities” of American citizens. The Cruikshank case, which arose from the Colfax Massacre of 1873, placed roadblocks in the path of federal action against racist violence in the South. Later, Plessy v. Ferguson declared that state laws requiring racial segregation did not violate the equal protection clause of the 14th Amendment, and Giles v. Harris essentially said that there was nothing the Supreme Court could do if states abrogated the 15th amendment by depriving AfricanAmericans of the Right to vote. Sadly, the current Supreme Court has followed in these footsteps, for example on Shelby County v. Holder, which declared unconstitutional key provisions of the Voting Rights Act of 1965, undermining the purpose of the 15th Amendment.
SG: The Jim Crow movement: How did it get its name? Can you document a specific point in time for its birth? Can it be argued that the movement is still with us today?
EF: The phrase Jim Crow originated as the name of a character in popular minstrel shows before the Civil War. For reasons not entirely clear, it later became a shorthand for the system of white supremacy adopted in the Southern states in the late 19th century. There is no specific date for the birth of Jim Crow – the implementation of this system occurred over twenty or thirty years, after the end of Reconstruction. The pillars of the Jim Crow system were the disfranchisement of black voters; legally-required segregation in all walks of life; the use of the judicial system to discipline the black population and provide a form of cheap labor to plantations, mines and other enterprises (the convict lease system); a collapse in public funding for black education; a labor market in which well-paying jobs were reserved for whites; and extra-legal violence (lynching) as a form of racial intimidation. The system was regional – blacks, for example, retained the right to vote in the North and West. Certainly vestiges of this system survive today even though the legal edifice of Jim Crow was dismantled during the civil rights revolution.
US Capitol with dome LN-0115
SG: Please explain your comment “In that sense, Reconstruction never ended.”
EF: One of the arguments of my book is that Reconstruction was both a specific time period (usually dated 1865-1877), although some historians use other dates) and a long historical process – the process by which the United States tried to come to terms with the consequences of the Civil War, especially the destruction of slavery. We are still in some ways grappling with that challenge, in debates over who should be a citizen, who should have the right to vote, how to ensure equal protection of the law to all Americans. In that sense, Reconstruction never ended.
SG: Recently Supreme Court Justices have referred to the 14th Amendment in several decisions. Please explain.
EF: The irony of the modern Supreme Court’s interpretation of the 14th Amendment is that it has involved a vast expansion of the amendment’s application to all kinds of Americans, yet a narrowing of its application in cases related to racial justice. Key decisions of the last half century or more that expanded the rights of Americans were based on the 14th Amendment – for example Baker v. Carr (the one man, one vote decision); Roe v. Wade, barring states from criminalizing abortion; and the recent decision establishing the right of gay men and lesbians to legally-recognized marriages. These and many other decisions of what is sometimes called the “rights revolution” were grounded in the amendment’s guarantees of equal protection of the law and enjoyment of life, liberty, and property by all Americans. Yet when it comes to race, the Court has generally proved more sympathetic to white plaintiffs claiming that affirmative action policies are a form of “reverse discrimination,” and, as noted above, has severely limited the scope of federal action to protect voting rights.
SG: What was the Dunning School? Are the concepts still being cited?
EF: Named after Columbia University historian William A. Dunning, the Dunning School viewed Reconstruction as the lowest point in the saga of American democracy, a period of corruption and misgovernment caused by the ill-advised expansion of the right to vote to African-American men after the Civil War. Writing around 1900, these scholars in effect offered a justification for the South’s Jim Crow system and especially the disfranchisement of black voters. For decades, when confronted with criticisms of the racial system, white southerners would warn that restoring the constitutional rights of African Americans would lead to a replay of the so-called “horrors” of Reconstruction. This scholarly interpretation reached a broad audience in the film Birth of a Nation, which glorified the Ku Klux Klan, and was adopted in every U. S. history textbook until the mid-twentieth century and beyond. Works of the Dunning School were long cited by Supreme Court justices in decisions related to the Reconstruction amendments. Today, no reputable historian holds to this outlook. Reconstruction is widely seen as a praiseworthy effort to create an interracial democracy for the first time in American history, a precursor to the modern Civil Rights Era. Yet elements of the Dunning approach survive in popular historical consciousness.
SG: Did Susan B. Anthony and Elizabeth Cady Stanton support the 15th Amendment in the belief that women would win the vote at the time? Was there serious support for including them?
EF: The 15th Amendment prohibited states from denying any citizen the right to vote “because of race.” It said nothing about the right of women to vote. As a result, it produced a deep split in the era’s women’s rights movement. Some feminists, black and white, saw it as a step toward universal suffrage that should be supported. Others, including Stanton and Anthony, saw it as a betrayal of the rights of women and opposed ratification unless discrimination on the basis of sex was also prohibited. They warned, correctly, that if this opportunity were missed, decades would pass before a woman suffrage amendment could be adopted. Others, including Frederick Douglass, a long-time advocate of voting rights for blacks and whites, men and women, argued that Reconstruction was “the Negro’s hour” – that is, that an amendment enfranchising black men could be adopted but that popular support for woman suffrage was not sufficient to ensure passage of an amendment including women. As Lucy Stone, a leading feminist, observed, both were probably right. The result was a breakup of the women’s movement and the creation of two new suffrage organizations, one opposed to the amendment, the other in favor. They would not reunite until around the turn of the century.
SG: Please elaborate on your statement that the Civil Rights Era “did not need a new Constitution; it needed the existing one enforced.”
EF: One of the points of my book is to emphasize that our Constitution is not self-enforcing, and that for decades, the 13th, 14th, and 15th Amendments were not fully enforced, thanks to Supreme Court decisions and congressional inaction. Thus, a racial system emerged in the South, with the acquiescence of the rest of the country, that flagrantly violated what the authors of the amendments were trying to accomplish. When South Africa abolished apartheid in the 1990s, it wrote a new constitution, since its old one institutionalized that unequal system. In this country, the Reconstruction amendments had created the legal framework of racial equality. The amended Constitution did not need to be rewritten; it simply needed to be enforced. Not until a great mass movement forced the courts, Congress, and the president to act, and to implement the plain language of the Reconstruction amendments, was the Jim Crow system overturned.
Thirteenth Amendment 711.2009.083.0002
SG: Please comment on each Reconstruction Amendment as to support and opposition in Congress and subsequently in the ratification process.
EF:
13th Amendment
Even though the end of slavery seems in retrospect an inevitable outcome of the Civil War, there was considerable opposition in Congress to its passage, especially among northern Democrats and border state Unionists (those from the slave states that did not secede to join the Confederacy). All Republicans supported the amendment; they understood that slavery was the fundamental cause of the Civil War. Many opponents argued that the original Constitution had been adopted only because southerners were persuaded that the document protected the right of states to legalize slavery if they desired. Thus, they claimed that the amendment undermined the Constitution. They also insisted that blacks were incapable of enjoying freedom and would refuse to work, or run amok committing acts of violence against whites. Some warned (correctly as it turned out) that Congress would use the amendment to pass legislation guaranteeing the basic rights of the former slaves, thus further undermining the powers of the state governments and elevating Blacks to full equality, which they strenuously opposed.
14th Amendment
All Republicans in Congress voted for the 14th Amendment, and all Democrats opposed. Even supporters, however, lamented the amendment’s limitations. It did not guarantee the right to vote for black men as many Republicans desired. But the basic point – establishing the citizenship of all persons born in the United States and guaranteeing them the equal protection of the laws – was by now seen as a logical result of the end of slavery. Opponents again drew on racism (that blacks were supposedly unfit for citizenship) and federalism (that the Amendment undermined the legitimate powers of the states) to charge that the amendment fundamentally and unwisely changed the constitutional structure.
15th Amendment
Like the 14th Amendment, the 15th was a compromise that did not satisfy all Republicans. Some wanted a positive statement that all male citizens were entitled to vote. They warned that the language barring exclusion on the basis of race allowed states to enact literacy tests, poll taxes, and other ostensibly race-neutral laws that in practice would eliminate most black voters. But again, all Democrats, the party of white supremacy, bitterly opposed the amendment, arguing that blacks were incapable of exercising the right to vote intelligently, and that the amendment contradicted the long tradition of state control of voting rights.
SG: Please comment on the history of the Lost Cause and its status today.
EF: The ideology of the Lost Cause emerged in the late 19th and early 20th century as a legitimation of the South’s system of white supremacy. It saw slavery as a benign institution that would have died out peacefully without war; insisted that the Confederate cause was motivated by states’ rights and individual liberty (for whites), not the defense of slavery; and that Reconstruction was a terrible mistake. It was embodied in the proliferation of monuments to the Confederacy that came to dominate the public landscape of the South, and in history books and novels (notably Gone with the Wind). While no historian today holds to the Lost Cause outlook in full, its elements are still widespread in popular historical understanding, as evidenced by the vigorous defense of Confederate monuments when their presence is challenged. A romantic view of the Confederacy as a symbol of local rights and individual liberty – with no consideration of the liberty of African Americans – remains widespread, and not only in the South. On the other hand, I think a realistic view of slavery as a brutal system of oppression and as the basic cause of the Civil War, and of Reconstruction as a key moment in the history of American democracy, is today much more widely shared than in the past.
Eric Foner is a DeWitt Clinton Professor Emeritus of History at Columbia University. He has served as president of the Organization of American Historians, American Historical Association, and Society of American Historians. He has also won Bancroft and Pulitzer Prizes in the same year.