The Buried Promise of the Reconstruction Amendments

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The Buried Promise of the Reconstruction Amendments

September 11, 2019 | News | No Comments

Over the past several decades, Eric Foner, a professor emeritus of history at Columbia, has established himself as one of the preëminent historians of the Civil War and Reconstruction. In 1988, he published “Reconstruction: America’s Unfinished Revolution, 1863-1877,” which became a standard history of the period. “The Fiery Trial,” his story of Lincoln’s relationship to the idea and reality of American slavery, won the Pulitzer Prize, in 2011. Throughout his work, Foner evinces a fascination with how the history he studies has been understood and relayed since the Civil War. One result of that interest is his new book, “The Second Founding: How the Civil War and Reconstruction Remade the Constitution.” It examines the Thirteenth, Fourteenth, and Fifteenth Amendments, which banned slavery, universalized due process, and granted black men the vote. Foner’s narrative explores the radical aspirations of the politicians and activists who envisioned these amendments, and the Supreme Court decisions that narrowed their scope, leaving their promise of a racially equitable society unfulfilled.

I recently spoke by phone with Foner. During our conversation, which has been edited for length and clarity, we discussed the heroic vision of Reconstruction’s proponents, the ways in which we misunderstand the legacy of slavery, and whether Trump’s Presidency demands a rethinking of our racial history.

You say early in the book that, in one sense, “Reconstruction never ended.” What exactly do you mean?

I defined Reconstruction in two ways. One, it’s a particular time period of American history. You can debate the dates. It starts in 1865, when the Civil War ends, or maybe it starts in 1863, when the Emancipation Proclamation is issued, and it ends sometime in the eighteen-seventies, although there’s debate about that also.

But, I think, more importantly, Reconstruction is a historical process. And the process is, How does the United States come to terms with the results of the Civil War? The unity of the nation we seem to have come to terms with. But the other matter is the destruction of slavery. How does the United States deal with the fact that four million people who were slaves became free? What role would they have? What rights would they have? How would they be treated? And those debates are still going on. Pick up today’s newspaper, and you’ll find things which relate back to the legacy of slavery. So in that sense, the reckoning has never happened, or we’re still grappling with the consequences of two hundred and fifty years of slavery.

Did you write this book because there was an area of Reconstruction you wanted to learn more about or teach people more about, or had things changed in your understanding of your previous scholarship?

Why does one choose to write a book in the first place? It may be some archival discovery, which was not really the case here. It may be the way debates are going on in the present. That did influence me. The issues central to the Fourteenth Amendment, the Fifteenth Amendment, the right to vote, are still part of our politics today. Who should vote? Who should be a citizen? What does equality before the law really mean? But, most important, and without trying to denigrate any other scholar, I lecture a lot about Reconstruction—I lecture in law schools, I lecture in history departments, I lecture to public audiences outside the academy—and I have found that there’s very little knowledge of why the Thirteenth, Fourteenth, and Fifteenth Amendments are important, or what they were trying to accomplish, even in law schools.

One of the things that I think needed to be corrected is that so much discussion of these amendments is based on just law-making places, like Congress and the Supreme Court. I’m not a lawyer, but I’m a historian. You’ve got to look at the whole society. Everybody was debating these questions during Reconstruction. So if you want to find out the meaning of these amendments, you’ve got to look way beyond Congress and the courts to see the general debate. And I felt that hadn’t been really illuminated enough.

What aspect of the debate?

I think it’s how issues that certainly were around for a long time, whether it’s women’s rights or African-American rights, became constitutionalized. And what did people expect from the Constitution? What did they see in the Constitution? Is the Constitution pro-slavery or anti-slavery? William Lloyd Garrison burned the Constitution, but the anti-slavery movement had a long tradition of debate. I think there’s a tendency in a lot of the literature today to make these amendments too narrow, to look too narrowly at what they were trying to accomplish. My view is their aim was, to use a very modern term, “regime change.” Not just changing one law, not just changing one institution, but changing from a pro-slavery regime before the Civil War to an anti-slavery, post-slavery regime after the Civil War. And that has many implications.

Again, I’m not a legal scholar. But these amendments have been used over the years by the Supreme Court for all sorts of decisions, many of which I think are based on really erroneous understandings of the period, historically speaking. That was another reason why I got interested in this subject—because I took a look at Supreme Court decisions and what books they cited and it’s amazing how very discredited views of Reconstruction as a period of “Northern vengeance” or “black incapacity” or political corruption remained in Supreme Court decisions long after historians had abandoned them.

So what would be examples of that?

There’s a lot of potential in those amendments. But starting way back, even during Reconstruction with the Slaughterhouse Cases, in 1873, the Supreme Court began whittling away, narrowing the scope of the Reconstruction amendments, based on a notion that they had not really changed the federal system. That is, based on the notion that they didn’t really expand the rights of citizens very much—that Congress didn’t mean to cover private violence, private actions, that deprive people of their Constitutional rights, even though it was clearly the intent of Congress to do so. [In the Slaughterhouse Cases, the Supreme Court, in its first ruling on the Fourteenth Amendment, found that the amendment protected the federal rights of citizens but did not protect them from actions taken by the states.] But, in fact, most of the people who debated these things, in and out of government, thought the amendments absolutely did cover them. What kind of constitutional right can be taken away from you by a mob without the federal government having any power to intervene against that?

Those Supreme Court decisions are in the late nineteenth century. But then they get reinforced as historians in the early twentieth century begin to write what is, I think, very misguided history of Reconstruction as a period of corruption and misgovernment. You see those works of history cited all the way down to the nineteen-fifties and sixties, even as historians are coming up with very new views of Reconstruction as a period that attempted to institutionalize an interracial democracy in this country, which had never existed before.

Are there rights that you think we should view ourselves as having, as citizens, that should be understood as part of these amendments? And, if so, how were they undermined?

Before the Civil War, citizenship was very poorly defined. In fact, there is no definition of citizenship in the Constitution until the Fourteenth Amendment, even though citizens are mentioned all over the place: the President must be a natural-born citizen, et cetera, et cetera. Even less defined was what comes with being a citizen. Is being a citizen just a badge, or membership in a club that doesn’t bring privileges or rights with it? Or does being a citizen actually carry with it a whole bunch of rights?

The people who wrote the Fourteenth Amendment thought that citizenship was substantive—that, if you were a citizen, you had basic rights, some of which we call natural rights, like what Jefferson talked about: life, liberty, and the pursuit of happiness. But there were many others. Slavery is a total institution: it is a system of labor, it is a political system, it is a racial system. And it had deprived black people of many rights, which ought to be enjoyed by everybody, even if you are not a citizen. And some parts of the Fourteenth Amendment talk about “persons,” not just citizens.

But the Fourteenth Amendment begins by talking about the privileges and immunities of citizens. What were they? Well, there is no definition there. But let’s take for example the right to a good or adequate education—if you read these debates both in and out of Congress, they certainly thought this was something that went along with being a citizen. The courts have never really seen it as that, at least in federal law. There are state constitutions and state suits where courts have ordered more money to be put into schools. But the problem was that even during Reconstruction, in the Slaughterhouse Cases, the Supreme Court said that almost all of what people considered their basic rights still remained under the states. National citizenship really didn’t amount to almost anything.

That sort of killed the privileges-or-immunities clause of the Constitution, which, to my mind, ought to be revived. There ought to be a discussion of what the substantive rights of citizens are. I mentioned one: the right to an education. That was denied under slavery. It was on the minds of people in the Reconstruction era. There are others. What about freedom from discrimination in pursuing a livelihood? Remember the pursuit of happiness, which is in the Declaration, of course, not the Constitution?

I think it would be plausible to argue that the right to vote has become, in popular usage, a privilege of citizenship—that the various ways of trying to suppress voting now are really a violation of the concept of what a citizen is. I think that clause ought to be revived from the dead, where the Slaughterhouse Cases interred it, and it could be a vehicle for considering more sweeping uses of these Constitutional amendments than the courts have really ever been really willing to pursue.


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Who were you talking about when you say “they” essentially wanted regime change?

I’m looking at black organizations that are commenting on these amendments. I’m looking at the women’s-rights movement. I’m looking at veterans of the anti-slavery movement—people who were actually very involved in drafting these amendments. These are not household names. If you think about the great iconic figures of American history, you’re not going to come up with John A. Bingham, and Lyman Trumbull, and James Ashley. These were anti-slavery people who, for years, had been trying to create a different legal structure once slavery is abolished, and a lot of their ideas flowed into the Thirteenth, Fourteenth, and Fifteenth Amendments.

You’ve got to look at the anti-slavery movement and its constitutional thinking before the Civil War. You’ve got to look at black organizations. As you know, toward the end, I talk a little about a group I’d never heard of, the Brotherhood of Liberty. It was a group of black lawyers, ministers, others, in the eighteen-eighties in Baltimore, who published a six-hundred-page critique of Supreme Court jurisprudence, called Justice and Jurisprudence, in 1889. No one cites that, but this was a powerful critique of how the Supreme Court had really missed the point, in many ways, of the Thirteenth, Fourteenth, and Fifteenth Amendments.

I’m not saying that their view is the only correct one, but I am saying that we shouldn’t just assume that the heritage of Supreme Court jurisprudence is unchallengeable now, and just sort of locked in and written in stone. That’s one of the problems for today, because court decisions are based on precedent, and, if you have decades of bad precedent, those things are still good law today. They have never been overturned. And that hampers, I think, creative uses of the law and Constitution to address racial inequality.

How do you think ideas of Reconstruction have changed in the past several decades since you wrote your big book?

Well, it’s hard to critique yourself, so to speak. Every historian knows that our fate is to be superseded by new historians. That’s the nature of the study of history. Books that are classics become forgotten; books that are the standard point of view are superseded by other points of view. But, without being immodest, I think I can say that my general history of Reconstruction from 1988 is still, not the last word by any means, but still kind of the standard narrative of the whole period.

But a tremendous amount of work has been done on issues like the impact of Reconstruction on women, both black and white, in the South and in the nation. Or regional differences, local histories, all sorts of things. They haven’t yet been put together into a coherent alternative narrative, but we know a lot more about what happened in Reconstruction now than when I was writing.

A couple of weeks ago, the Times released its 1619 Project, which is obviously not simply about Reconstruction or the Civil War. What was your impression of the project, and what did you think it told us about our current age and how we are thinking about these things?

I think the level of the scholarship was good. There’s nothing in there that historians don’t already know, people like me, who study this stuff. That’s not patting myself on the back. That’s just saying this is a very good popularization, and I don’t use “popularization” negatively at all. It brings recent historical scholarship to the attention of people who are not scholars but are intelligent readers. One can pick it apart, one can go into this article or that article and say, I don’t agree with this or that. Fine. That’s how it always works in the study of history.

One might say that 1619 is an odd date to begin with, if it’s slavery and its aftermath we’re interested in, because there were slaves in St. Augustine, Florida, fifty years before 1619. Slavery in what became the United States did not begin in 1619, but this is an example of what you might call the Anglo-centric view of early American history that we cannot get away from. I mean, the history of Colonial America is written from east to west, from the beginning of English settlement and then pushing west, west, west. But Colonial America was settled from south to north in the Spanish Empire. It was settled from north to south in the French Empire, in the middle of the continent. There’s this tendency to think that only the English colonies count, and that Colonial history is just a kind of prelude to the American Revolution and the creation of the American nation state from the English colonies and these other places that were Spanish or French. In fact, that’s not how people experienced it at all. Nobody knew the American Revolution was coming a century and a half later. There was slavery in Spanish Florida half a century before 1619, and that’s also part of American history, and it shouldn’t be ignored just because it’s not the English part.

The part that I liked the best, actually, was the articles trying to link things that we know in the present back to the legacy of slavery. Why do we have such a horrible health-care policy in this country? Why are we the only modernized country with no national health insurance of any kind? That has a lot to do with slavery, actually, as they pointed out.

Your book gestures at the fact that we’re still dealing with these issues today. I don’t want to turn this interview into a thing about Trump, but has anything about the last few years, with Trump’s rise, changed the way you view the work you do or the period you study?

You know, that’s an interesting question. It may be too soon to tell. I think a lot will depend on whether Trump is reëlected. Is Trump an aberration? Is this just a crazy thing that happened in some countries— that’s happening in England right now? If Trump is reëlected, I think we have to then sit and say, “You know, maybe some of our assumptions about how deeply rooted democratic values are in our country, how deeply rooted notions of equality are in America, maybe we need to rethink that.”

There was a sort of Cold War view of America as the exemplar of liberalism, of democracy, of equality, you know—never quite complete, but always striving in that direction and improving in that direction. Maybe that’s not correct. Maybe that’s one strand of American history, but maybe what we need to do is emphasize other strands, equally powerful. The strand of nativism, the strand of racism, the strand of, you know, hostility and hatred of the other. Maybe we need to rewrite American history to highlight those. Not to throw away everything else, but to say maybe we’ve been a little bit Pollyanna-ish about what American culture really is.

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