Guaranteeing rights

The last time in U.S. political history when a substantial fraction of the people were screaming that the Constitution had enabled monstrous evil was immediately prior to the Civil War. The abolitionist William Lloyd Garrison famously called our basic document "a Covenant with Death, an Agreement with Hell" because it countenanced slavery. And so, eventually, conflicting passions broke the system and the nation fought a Civil War which killed 620,000 combatants. And then the victors set about fixing the Constitution.

Historian Eric Foner's The Second Founding is the story of how a radical Congress (in those days, the radicals were Republicans) set about remaking our basic law to guarantee civil equality of the races -- and how the next generation and a conservative Supreme Court set about subverting the new edifice the Civil War generation had built. Foner is the author of an exhaustive history of the Reconstruction era (1863-1877) which I've explored here, here, and here. His current book focuses on the Constitutional changes -- the 13th, 14th, and 15th Amendments -- which their authors believed would put the evil which they had just overthrown behind them forever.

It didn't work out that way.

• The 13th Amendment outlawed "involuntary servitude," "except as a punishment for crime" -- an exception that the states of the former Confederacy used to entrap Black citizens in "neo-Slavery" using "vagrancy" laws and other phony offenses. The ill-effects of that Constitutional phrase continue today in our disenfranchisement and discrimination against people with criminal records.

• The 14th Amendment guaranteed equality and citizenship to anyone born here. The courts fairly quickly allowed segregation laws to gut this promise of equal treatment, though the same courts rapidly became very solicitous of the "due process" for those favored phony "legal persons," big corporations.

• The 15th Amendment gave black men the vote, but the same courts allowed states to hedge the franchise with poll taxes, literacy tests, and other restrictions, gutting the franchise.

Congress built further interpretation and implementation into the amendments. But this ran the risk that their purposes could be defeated by narrow judicial construction or congressional inaction.

All these amendments promised that Congress could make the laws needed to realize their intent, but a combination of lack of political will and unfriendly courts prevented that from happening until, partially, the Civil Rights struggle of the 1950s and '60s. I take from that experience that the meaning of law will always be somewhat dependent on how much we're willing to agitate for in the streets -- plus doing all that other stuff like educating ourselves and voting.

Foner has provided a short, very accessible treatment of the legal aspect of Reconstruction in this book. In the current moment, when Republicans believe, accurately, that they can't win numerical majorities for their policy preferences, and so must game the Constitutional system, this is history we can't ignore. Foner is not despairing.

Rights can be gained, and rights can be taken away. A century and a half after the end of slavery, the project of equal citizenship remains unfinished. ... And because the ideals of freedom, equality, and democracy are always contested, our understanding of the Reconstruction amendments will forever be a work in progress. So long as the legacy of slavery and Jim Crow continue to plague our society, we can expect Americans to return to the nation's second founding and find there new meanings for our fractious and troubled times.