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

An amendment is a change or addition to the Constitution. The first 10 amendments to the Constitution are collectively known as the Bill of Rights, and are frequently referenced in modern court cases. The Second Founding argues that the most significant amendments after the Bill of Rights were the 13th, 14th, and 15th Amendments. These are known as the Reconstruction Amendments. Amendments must be ratified by three-fourths of state legislatures, so they require considerable support. Given the sharp sectional divides after the Civil War, this made an amendment very difficult to pass. After they are passed, the Supreme Court interprets their meanings.

Birthright citizenship is the idea that anyone born in the United States automatically becomes a citizen. It overturned the idea that Black people could not be citizens, which had been established by the Dred Scott decision. This concept was included in the 14th Amendment, and is still used in contemporary immigration cases. By embedding the principle of birthright citizenship in the Constitution, the 14th Amendment sought to guarantee that all individuals born on US soil would have an undeniable claim to citizenship, regardless of race, color, or previous condition of servitude. This not only expanded the scope of who could be considered an American citizen but also challenged existing notions of national identity and belonging.

The Privileges or Immunities Clause of the 14th Amendment was originally included to ensure that all citizens would enjoy the same fundamental privileges and immunities, regardless of state law. The wording originated in the Constitution, although the Constitution used the word “and” instead of the word “or” in the clause. The Privileges or Immunities Clause was rendered nearly useless after Slaughterhouse, in which the Supreme Court decided that it only protected a limited set of national rights, such as protection on the high seas and the right to use navigable waters of the United States (134). This ruling placed a significant limitation on the power of the federal government to protect individual rights against state abuses.

The “state action” doctrine holds that private acts of discrimination are beyond the reach of the 14th Amendment. The original wording of Section 1 of the amendment deals with discrimination by state officials, but Supreme Court justices in the late 19th century differed in how they thought it should be interpreted. In the Civil Rights Cases, the court held that the Civil Rights Act of 1875 did not empower the federal government to regulate private prejudices, only those that were state-sponsored. This interpretation placed a significant limitation on the reach of the Reconstruction amendments, providing a legal basis for private individuals and organizations to maintain discriminatory practices as long as there was no direct state involvement.