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

Congress wrestled with major issues following the end of the Civil War. This happened amidst a growing disagreement between President Johnson and the Republican-controlled Congress, along with rising violence against Black people in the South. The 14th Amendment addressed various issues like the rights of the formerly enslaved, national unity, and political power. Some goals were achieved, like defining citizenship, while others, like fully securing rights for Black Americans, were left for future generations.

The Republican Party needed to maintain control in Congress, but the party was divided into Radicals and Moderates. Radical Republicans envisioned complete equality for Black Americans, secured by a strong federal government. Moderates, who made up the majority of the party, were anti-slavery but focused on piecemeal practical solutions rather than moral arguments. However, Republicans largely agreed on the overall goals of Reconstruction. They believed the federal government should define and guarantee rights for freed men and women, and they needed to maintain party unity to pass legislation over President Johnson’s vetoes.

The Joint Committee on Reconstruction was tasked with reviewing proposed amendments and drafting the 14th Amendment. The first draft was an attempt to solve the problem of Black suffrage: With the Three-Fifths Clause invalidated, former slaveholders in the South would not gain political power unless they allowed Black men to participate in government. One proposed solution would base representation in Congress on voters, not total population. This would put pressure on Southern states to enfranchise Black men or lose power. This approach had its own issues, like giving more power to western states and potentially leading to women’s suffrage, which was not widely supported at the time. The committee reached a compromise on representation. They would base it on total population but punish states that denied voting rights based on race by reducing their representation proportionally. This plan was unpopular with Radicals because the South could easily manipulate the law with non-racial voting restrictions. Sumner, who believed that the amendment betrayed Black people, joined Democrats in voting against it.

While the debate over the 14th Amendment raged, Congress also considered two bills by Senator Lyman Trumbull. One was the Civil Rights Act of 1866. This law would be the first to define US citizenship and specify the rights of all citizens. It established birthright citizenship for almost everyone born in the US, excluding Indigenous people and people subject to foreign powers. This overturned the Dred Scott decision and followed the abolitionists’ demands for racial equality in citizenship. It did leave some key issues unresolved, though. It listed specific rights, but Black leaders argued it should include more than what was listed. It was also unclear whether the act applied to private individuals and businesses discriminating against Black people. The 13th Amendment focused on government actions, but the act mentioned “customs,” suggesting it might cover private behavior too. The other main concern was that states could potentially pass laws that weren’t racially discriminatory on the surface but could be enforced in a biased way. The federal government was not prepared to constantly intervene in local matters, so the act would only activate when essential rights were infringed upon.

Even before the act was passed, Congressman Bingham proposed a separate amendment requiring equal protection under the law for all citizens. The Joint Committee approved a race-neutral version of his amendment, which Democrats saw as an attack on states’ rights and a move toward federal overreach. Republicans thought that it did not go far enough, because it relied on Congress to act. They wanted a stronger, more explicit protection against discrimination written into the amendment itself. After months of debate, the Joint Committee decided to combine all of the separate amendment proposals into one. Unlike the Bill of Rights with separate amendments, the 14th Amendment became a bundled proposal. The hope was that popular sections would help pass less popular ones. The first sentence of the amendment provided birthright citizenship for everyone born in the US, including individual states. However, the wording was not entirely clear. While it aimed for equality, specifying both national and state citizenship created confusion. This later led to court rulings weakening the national aspect.

The 14th Amendment went further than the Civil Rights Act. The act listed specific rights states couldn’t take away, but the amendment used broader terms like “privileges,” “immunities,” “due process,” and “equal protection.” The wording was carefully chosen to sound reminiscent of the Constitution. This language was not entirely straightforward, and members of Congress pushed for clearer definitions of “privileges” and “immunities.” Senator Howard, who presented the amendment, acknowledged the difficulty of defining “privileges or immunities.” He saw the amendment as a way to limit state power and ensure they respect the fundamental rights listed in the Bill of Rights. By mentioning the Bill of Rights, Howard hinted at a new concept: states would now have to follow the Bill of Rights too. This process of making the Bill of Rights apply to states, called incorporation, has been ongoing throughout the 20th and 21st centuries.

The Constitution referenced the privileges and immunities of state citizens, but the 14th Amendment expanded this to include all citizens and specifically forbade states from infringing on these privileges or immunities. The Supreme Court soon diminished the significance of the 14th Amendment’s Privileges or Immunities Clause, shifting the focus to the Due Process Clause for applying the Bill of Rights to the states. The Due Process Clause applied to any person, not just citizens, unlike the Privileges or Immunities Clause. The final clause of Section 1 of the 14th Amendment extends protections to all persons, not just citizens, by prohibiting states from denying anyone equal protection under the law. In this way, the 14th Amendment explicitly introduces equality as a constitutional right. While the guarantee of equal protection is race-neutral, it has broadly expanded legal rights for many groups in the United States.

The 14th Amendment’s Section 1 focuses on limiting what states can do, not what individuals can do. During Reconstruction, there were discussions about whether the amendment also granted Congress the authority to address rights violations perpetrated not just by public entities, but by private individuals. In the context of post-war Southern violence, “protection” meant not just equal laws but also Black people’s personal safety from mobs and intimidation. Congress believed the amendment gave them power to stop private actions that interfered with equal rights for citizens, including violence and exclusion. However, the Supreme Court would interpret the amendment narrowly, focusing on limitations on state actions.

The women’s rights movement, inspired by abolitionism, aimed for equal rights for women similar to those for Black men achieved through abolition. Ultimately, the decision to include “male” in the 14th Amendment was about political bargaining and states’ control over voting, not women’s rights. Few in Congress supported women’s suffrage. Even Charles Sumner, a supporter of women’s suffrage in general, felt Black suffrage was more important at that moment. This focus on racial equality over women’s rights would cause further tension between feminists and abolitionists.

Republicans hoped the amendment would unite the party and position them well for the elections, making it a central campaign issue. President Johnson’s campaigning against the amendment and the South’s refusal to ratify convinced Moderate Republicans their approach would not work. They came to believe Black suffrage was necessary for loyal government in the South and equal rights for Black Americans. In March 1867, Radical Reconstruction placed the South under military rule, organizing new governments and state constitutions to guarantee voting rights regardless of race. In July 1868, the 14th Amendment was ratified. While the Reconstruction Act enforced Black suffrage in the South, it was not guaranteed nationwide.