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

The 1870s saw a retreat from Reconstruction efforts after the election of 1867. Black rights began to erode in the 1880s, but Black people continued to fight for their rights. After the amendments were passed, the Supreme Court’s decisions led to a gradual withdrawal from the initial ideals of Reconstruction. This was due not only to racial biases but also to a concern for maintaining federalism. The Supreme Court’s decisions reflected the weakening national support for Reconstruction during the 1870s and 1880s.

In the early 1870s, the Supreme Court began handling cases related to the new legislation. A landmark ruling was in the Slaughterhouse Cases, which stemmed from Louisiana’s law centralizing meat processing to improve sanitation. White butchers sued, claiming the law violated their right to free labor as protected under the Privileges or Immunities Clause and alleged legislative corruption. The court upheld the law based on a state’s existing authority to regulate businesses for public health reasons. Justice Samuel J. Miller used the case to address the 13th and 14th Amendments, affirming that their purpose was to secure the freedoms of formerly enslaved people and protect their rights. However, Miller significantly limited the scope of the 14th Amendment’s Privileges or Immunities Clause, arguing it did not change the federal balance significantly. According to him, the amendment protected only rights associated with national, not state, citizenship. He concluded that other rights were under state jurisdiction, thus narrowing federal oversight over states and minimizing the Supreme Court’s role as a censor of state laws. The four dissenting judges agreed with the butchers’ arguments, promoting a strong federal role and broad citizen rights. They believed that the amendment applied to all citizens, not just Black people. Their view foreshadowed the “liberty of contract” legal approach that favored businesses in the late 19th century.

While the 14th Amendment mentioning male voters limited women’s rights, it did not explicitly exclude them from other protections. Women’s rights activists argued for equal rights and challenged state laws that restricted their basic rights. While acknowledging women as citizens, the court said citizenship did not automatically guarantee the right to vote. The states could decide voting rights as long as they did not exclude Black men. Some states began expanding women’s rights, but this was done on an individual state level. The court rejected broad interpretations of the amendments in all these cases, but this foreshadowed future uses of the 14th Amendment for expanding rights.

Introduced in 1870, the Civil Rights Bill was finally enacted in 1875. It faced opposition from both Democrats and Republicans who felt that the amendments did not support a federal anti-discrimination law. Using Slaughterhouse as evidence, Democrats used the Supreme Court’s narrow interpretation of the 14th Amendment to argue states still controlled many rights the act aimed to protect. With the Privileges or Immunities Clause weakened, supporters of the bill focused on the Equal Protection Clause and the idea that states could not allow racial discrimination through inaction. Sumner, the bill’s sponsor, appealed to broader principles of human rights and argued that businesses covered by the act were effectively state actors.

In the mid-1870s, Southern Democrats used paramilitary groups to intimidate and attack Black voters and Republicans. This violence, unlike the earlier KKK tactics, was conducted openly, as they believed Northerners would no longer back federal intervention. Federal officials, frustrated by the situation and facing economic troubles in the North, seemed powerless to stop it. This increasing limitation of federal power was demonstrated in the case United States v. Cruikshank, in which a white mob killed many Black people. Initially, the people in the mob were convicted. Justice Joseph P. Bradley, who had dissented in Slaughterhouse, claimed that most rights under the 14th Amendment, such as protection against common crimes like murder, fall under state jurisdiction. According to him, the 15th Amendment protected Black voting rights from violence by individuals, but race was never explicitly mentioned in the case. The case was sent to the Supreme Court, and only a few of the men were convicted.

While the Supreme Court restricted the scope of the 14th Amendment, it maintained a more expansive interpretation of the 15th Amendment regarding voting rights. The court upheld the federal court conviction of Baltimore election officials who manipulated election results by discarding votes from Black citizens. They emphasized the primacy of national law over state power in matters of federal elections. The ruling, applying specifically to federal elections, marked a strong endorsement of federal authority to safeguard electoral integrity.

The equality of public rights for African Americans remained uncertain until the Supreme Court addressed it in 1883 with the Civil Rights Cases. These involved Black people across the country being denied service in public spaces. The Supreme Court struck down most of the 1875 Civil Rights Act, reasoning that the law targeted private businesses, not state actions. This decision strengthened the “state action” doctrine and upheld the distinction between civil and political rights versus social rights. The Brotherhood of Liberty formed in response to this widespread denial of rights. In 1889, they published Justice and Jurisprudence, a 600-page treatise, which criticized the Supreme Court’s rulings on these issues.

The only justice to dissent was John Marshall Harlan. He argued they misinterpreted the recent amendments with a focus on technicalities like federalism instead of the core issues: freedom and citizenship for Black people. Harlan acknowledged the discomfort some had with racial equality, including himself when it came to interracial relationships. However, he stressed that the Civil Rights Act addressed civil rights, not social rights. The decision had a devastating impact on Black Americans’ hopes for equal treatment and sparked outrage among their allies. Justice Bradley, who wrote the majority opinion, said that states could enact their own civil rights laws. This was unlikely in the Democrat-controlled South, but Black activists in the North and West lobbied for state-level civil rights laws.

In 1888, Republicans regained control of both the presidency and Congress, creating an opportunity to pass new legislation. Congress debated the Federal Elections Bill, aimed at securing Black suffrage in the South, but the bill was defeated due to southern Democratic opposition and Republican infighting. This marked the last major attempt by Congress to protect Black voting rights for many decades. The United States’ rise as an overseas imperial power in the late 19th century prompted further debates about citizenship and rights. Following the acquisition of territories, questions arose about whether the Constitution applied in these areas. The court determined that people living in these territories were not subject to the same rights, stemming from racist ideas about white supremacy.

By the early 1900s, Black voting rights were severely restricted in the South. Previously, Democrats used intimidation, violence, and manipulating voting districts to limit Black suffrage. Now, with the Supreme Court’s tacit approval, they felt emboldened to implement even harsher measures to prevent Black men from voting. They exploited the loopholes in the 15th Amendment by adding caveats to the ability to vote—not explicitly mentioning race but with the clear intent to disenfranchise Black people. Though the 14th Amendment included a penalty for states denying the right to vote, the federal government did nothing to enforce it.