An American Ideal and the American Law - Thoughts on The Second Founding by Eric Foner

Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: W. W. Norton and Company, 2019).

The Civil War and Reconstruction era saw the ratification of three Constitutional amendments….one abolished slavery, another guaranteed due process and equal protection before the law, and still a third established universal manhood suffrage. For Eric Foner this is revolutionary because it reoriented the power of enforcement to the federal government and away from the states…thus the Second Founding.

I find this book vastly important primarily because it tackles the Constitutional debates that helped define the great American conflagration and its aftermath. Where should power reside? What should be the limitations of federal government? What powers would be left to the states? And most importantly…Foner explores the intra party debates - none of this casts any political party in monolithic terms.

Foner is best at complexity, illustrating that political parties are not necessarily wedded to a static ideology - but rather, are dynamic institutions. Just like ideas…parties evolve, and just like groups of people, parties reflect diversity of thought within its ranks. I suppose this is why we can look at these amendment as great achievements that were inherently flawed. The Thirteenth abolished slavery yet contained the infamous six-word phrase, “except as a punishment for crime.” The Fourteenth guaranteed equality before the law but failed to explicitly state where federal jurisdiction ended in terms of specific rights, where punishment for violation of said rights was left to the discretion of the states. The Fifteenth banned disfranchisement based on race but not other qualifications for voting, which again, left the states with plenty of room to figure out other ways to keep folks (read: black people) from voting.

So Foner notes the flaws of the Reconstruction Amendments but lauds the Second Founding as a praiseworthy legal accomplishment in terms of moving towards realizing ideals...the very ideals of the founding generation that fell short for much of the population the first time around. Of course, it would take another century before the Federal government passed legislation securing civil rights and voting rights for black people. One might note how activists behind the Civil Rights Movement were the ones who forced the hand of the government, ultimately - and secured this legislation. We might also note that all subsequent movements to secure rights found inspiration with this movement. In my estimation, we need to couple the history of legal and Constitutional achievement with a framing that centers the black experience in the American narrative. Foner offers insights here. I am looking forward to future conversations on the subject. Buy the book, read it carefully, then we can talk.

With compliments,

Keith