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

The Introduction opens with a description of the economic importance of slavery in both the North and the South. While slavery had been abolished in the North, many Northerners still indirectly relied heavily on labor from enslaved individuals. The Founding Fathers did not explicitly condone or condemn slavery though some of them secretly hoped that the institution would eventually die out. The Constitution did not mention slavery by name but still protected the institution through clauses that supported the return of fugitive enslaved individuals, the importation of enslaved individuals, and the Three-Fifths Compromise, which only counted three out of five enslaved Black people when determining a state’s population for the purpose of legal representation. These protections enhanced Southern power in the House of Representatives and the Electoral College. It was a widely accepted belief that the Constitution situated slavery beyond the reach of the national government, leaving its regulation to the states. Most debates over slavery ended in a stalemate.

The Introduction categorizes rights into four groups: natural, civil, political, and social. While most Republicans in the 1860s believed Black Americans deserved natural and civil rights, few embraced granting them political or social rights. Reconstruction, however, marked a turning point in this thinking. The text terms it the “second founding” because this era saw the enshrinement of rights in the Constitution, specifically to secure equal rights for Black Americans. However, enforcing this newfound equality proved challenging. Deep-seated racism and the entrenched principle of states’ rights presented significant obstacles. Local and state governments held considerable power over legal and social norms, prioritizing public order and health over achieving equality for marginalized groups. This emphasis on states’ rights, as echoed by Frederick Douglass, was not only seen as a key cause of the Civil War but also as a major barrier to the universal application of human rights.

Within the antislavery movement, there was a broad range of opinions on constitutional matters. Famed abolitionist William Lloyd Garrison saw the Constitution as inherently pro-slavery and refused to participate in a system that supported it. Others in the movement argued that the Constitution did not legally support slavery and advocated for the use of habeas corpus to free enslaved individuals. Most abolitionists adopted the policy of “freedom national,” which states that the Constitution does not allow the federal government to abolish slavery in states that supported the practice, but does require freedom for those living in federal territories or jurisdictions. In this model, slavery would be contained in the Southern states, unable to expand to other regions. The “freedom national” stance was central to the Free Soil and Republican Party platforms between 1848 and 1860, advocating for the federal government’s separation from slavery. This approach allowed Republicans to fight slavery politically without contradicting the Constitution.

Free Black people spearheaded the push for equal rights, challenging the American Colonization Society’s 1816 initiative to resettle free African Americans outside the United States. Black conventions argued for birthright citizenship, asserting that American citizenship, as implied by the Constitution’s criteria for presidency, should be based on birthplace, not race or ancestry. Leaders advocated for both social rights, related to personal relationships, and public rights, demanding equal access to public services and businesses, which were often denied to Black people. Even with legal barriers and widespread exclusion, free Black people and allies actively fought for their rights, employing tactics like voting campaigns and legal challenges. However, antebellum judicial decisions, notably the Supreme Court’s Dred Scott decision, consistently upheld slavery and denied Black Americans citizenship. Chief Justice Roger B. Taney’s ruling in the Dred Scott decision presented a paradox: While defining citizenship as freedom from discrimination and full enjoyment of constitutional rights, he simultaneously declared Black Americans as ineligible for such citizenship.

The Civil War significantly increased the national government’s power, challenging the concept of state sovereignty among Republicans. The Emancipation Proclamation symbolized the birth of a new national state focused on eradicating slavery—the country’s most substantial property asset—and advancing freedom and human rights. Only a few years after Dred Scott, the Attorney General reversed the court’s decision and confirmed the citizenship of all free people born in the US, regardless of race. Bates, the Attorney General in 1862, admitted that decades of citizenship had not clarified its full meaning or rights. While Bates saw citizenship as a symbolic status without guaranteed rights, Black Americans saw it differently. Fueled by pre-war struggles for equality and their wartime service, they demanded broader recognition as American citizens and a more comprehensive definition of rights. Lincoln himself, influenced by these demands, called for partial Black suffrage in his final speech.

Rights became a central theme in political discourse, covering a spectrum from citizens’ and fundamental rights to women’s and free labor rights. The distinction among different types of rights started to blur, with figures like Charles Sumner advocating for suffrage as a fundamental right, reflecting a broader evolution in the concept of rights. The Civil War and subsequent amendments fostered a view of the federal government as a protector of citizens’ rights, marking a new role for the national state as the “custodian of freedom” (17), incorporating abolition, equal rights, and Black male suffrage into the Constitution with a commitment to national enforcement.

The progress in abolishing slavery did not immediately lead to full equality, as shown by racially motivated violence in both the North and the South that followed. Some Northerners, like merchants, prioritized a quick economic recovery over Black advancement. Frederick Douglass’s call for full legal equality and voting rights for Black men after slavery’s end met opposition in influential Northern newspapers. After the war, Black Americans continued to face marginalization in Northern society, with widespread voting-rights deprivation and confinement to low-wage, unskilled jobs. Although new governments in several states that formerly supported slavery abolished slavery during the war, they largely ignored the rights and future opportunities of the freed people. These developments strengthened the belief among Radical Republicans that state governments could not be trusted to safeguard the rights of citizens.

Racism, respect for state and local authority, and ratification challenges made amending the Constitution difficult. Throughout the Civil War, Lincoln pushed the limits of constitutional authority by raising funds and troops without congressional approval, suspending habeas corpus, and issuing the Emancipation Proclamation under “military necessity.” Despite these stretches of constitutional limits, the majority of Americans favored adjusting policies within the existing constitutional framework through reinterpretation or amendment, instead of abandoning the document altogether. Some Radical Republicans believed Congress could act without amending the Constitution, using the argument that the Southern states had left the union and therefore had no constitutional rights. However, this very emphasis on the Constitution’s importance is what gave the Reconstruction amendments such weight. Amending the Constitution lent legitimacy and public attention to these changes, even if they sparked controversy and violence.