Review of “The Second Founding: How the Civil War and Reconstruction Remade the Constitution” by Eric Foner

Pulitzer Prize winner Eric Foner is recognized as America’s leading expert on the history of the period immediately after the U.S. Civil War, known as Reconstruction, during which the North tried to build an egalitarian society. The title of his latest book, The Second Founding, encapsulates his thesis that the changes to American society effected during Reconstruction were so profound they amounted to a new beginning, indeed, a second founding, of the nation.

The principal purpose of the original ten amendments to the Constitution, the Bill Of Rights, was to protect individuals from the power of the new central government. Though the original authors of these documents (often hallowed as “the Founders”) wanted a national government more formidable than the one established by the feckless Articles of Confederation, they sought to limit the power it could exercise over its citizens. But those constraints did not apply to individual states. For example, many of the states continued to have established religions even though the first Amendment forbade the national government from establishing any single religion.

Foner argues convincingly that the Civil War was fought over the southern states’ efforts to preserve the institution of slavery. [Although the declarations of secession by Southern states clearly articulated that the protection of slavery was the paramount impetus for “the immediate cause of the late rupture and present revolution” per Confederate Vice President Alexander Stephens, enough later Southern history revisionists averred that secession was actually about “states’ rights” that the argument has to be constantly re-litigated.] But even though the North had won the war, there was no immediate legal basis for eliminating slavery or for protecting the newly freed slaves from the depredations or their former masters. Ironically, the Emancipation Proclamation of 1863 had “freed” only those slaves still under the control of the rebel armies, leaving slaves in the northern and border states in a legal no-man’s-land concerning servitude.

The legal scaffolding for reorganizing the country took the form of three transformative amendments to the Constitution: the 13th, 14th, and 15th. The 13th abolished slavery. The 14th established birthright citizenship for any person born in the United States “and subject to the jurisdiction thereof,” along with requiring the states to provide “due process” and “equal protection” to all “persons within their jurisdiction.” The 15th prohibited the states from denying the right to vote to any person on the basis of “race, color, or previous condition of servitude.” The effect of these amendments and the Civil Rights Act of 1866 was to attempt to put into practice the ideal of equality expressed in the Declaration of Independence. To that end, the amendments invested substantially more power in the national government and provided the means to make the national government the protector of individuals against discrimination and unfair treatment by states or local governments.

This indeed was revolutionary.

Discussion: Foner is not only superb historian, he is an excellent legal analyst. As an historian, his description of the political maneuvering behind the adoption of the amendments is riveting. But what really stands out in his narration is his explication of the legal niceties behind the language adopted. [Well, maybe that’s just the lawyer in me enjoying some good legal writing.]

Unfortunately, the story of the second founding does not end with the adoption of praiseworthy amendments. As Foner recounts, the language of the amendments left enough wiggle room for malevolent racists in the postwar South to reestablish white race-based hegemony. With the end of U.S. Grant’s presidency in 1877 (Grant was dedicated to ensuring that freed blacks realized their newly legislated rights), national commitment to Reconstruction ended as well. Northern troops were withdrawn from the South. “Jim Crow” laws taking rights away from blacks were enacted in one state of the South after another. The Klan was given free rein to exercise police power over blacks without fear of reprisal. Schools and other public services for blacks were defunded. History textbooks used in southern schools were designed to teach white superiority and black backwardness, so that children imbibed these ideas from the earliest age. These practices persisted until the Civil Rights movement of the 1960s, but did not end entirely. Rather, they took on new shapes; the battle for racial justice continues to this day.

A cartoon from a U.S. newspaper from 1880 reads: ‘Terrorism in the South. Citizens beaten and shot at.” (Granger, via Smithsonian Magazine)

Foner recapitulates the sorry history of how a complicit United States Supreme Court abetted racist politicians and lower court judges in their efforts to eviscerate the original intent of Civil War Amendments for almost 100 years after their enactment. Again, his legal skills come to the fore as he takes us through the intricacies of numerous cases that constitute the corpus of civil rights jurisprudence.

Evaluation: This book is surprisingly brief (only 176 pages) considering the depth with which it treats a complex subject. It’s principal thesis, that the Civil War and Reconstruction completely overhauled the Constitution and the society it governed, is ably and cogently argued. I very highly recommend it for all American citizens.

Rating: 5/5

Published by W.W. Norton & Company, 2019