We Can Not Take The Future for Grqnted

The Second Founding:  How the Civil War and Reconstruction Re-Made the Constitution by Eric Foner

I found this a challenging book  because of the complexity and oscillating changes  over time in the Supreme Court’s  interpretations of the meaning and intent of the 13^th and 14^th and 15^th Amendments.

The 13^th Amendment outlaws slavery and involuntary servitude, except as a punishment for a crime for which the party has been convicted. It  gave Congress the power to enforce this article.  

The 14^th Amendment rules that “all persons born or naturalized in the United States are citizens of the United States  and the states...and that no state shall make or enforce any law that shall abridge the privileges or immunities of citizens of the United States...nor shall any State deprive any person of life, liberty or property, without due process of law or deny to any person within its jurisdiction the equal protection of the laws and also gave Congress the power to enforce the provisions of this article.”  (There are two other sections, three and four, which are not really relevant today.)

The 15^th Amendment rules that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

This Amendment, too, conveyed the power to Congress to enforce it through appropriate legislation.

What I took away from the book is how widely the interpretation of these amendments has been by the Supreme Court.  Even today, the potential expanse of these amendments to enforce true equality has been by no means tapped.

The force of these amendments was greatly strengthened by legislation passed from 1866-1875, principally the Civil Rights Acts.

Tragically however, h the Supreme Courts that ruled during the last quarter of the 19^th century were extraordinarily conservative. Indeed many members racist, and they sharply limited the scope of the impact of these amendments.  The key means by which that was done was to not allow the 14^thAmendment to apply to private actions (individuals and groups) but only to state and federally mandated laws.  This reflected a strong desire to maintain Federalism but also a very strong political bias to maintain what were very strong counter actions to Reconstruction and its commitment to advance the quality and freedom of blacks.

There are two major lessons I took away from reading this book:

1. The notion that the nation’s Supreme Courts have been “impartial” or “apolitical” is wrong.  Unfortunately, they have often been both.  In recent years, Republicans have recognized this and fought hard to gain the Presidency and hence appointment of judges sympathetic to their views.  In fact, this desire may well have been a decisive factor in the election of Donald Trump. And earlier,  Democrats did it too.  Witness Roosevelt’s ultimately defeated effort to “pack” the Supreme Court to uphold New Deal legislation.

 A major point of dispute in interpreting what was acceptable or not under the 13^th and 14^th Amendments has hinged on the question of what represented  badges of slavery.  For decades, for example, it was argued that segregation in transportation and education did not represent badges of inferiority; witness Plessy vs. Ferguson and numerous other cases.  Brown vs Board of Education changed that.

Today, we have the irony (from my perspective) that whites are claiming to be disadvantaged because of the application of a reasonable consideration of race as one of many factor sin constituting an incoming college class as recognition of the long-lasting discrimination against blacks.                

2. It is notable to see how even a judge like John Marshall Harlan, while ahead of his time as he lodged the one dissent in Plessy vs. Ferguson, came back with other rulings which supported what amounted to segregation.

This history underscores that we cannot take the future for granted.

 As Eric Foner writes, “rights can be gained and rights can be taken away.  A century and a half after the end of slavery, the process of equal citizenship remains unfinished.  The ideals of freedom, equality and democracy are always contested.”

Positively and with hope, Foner writes,  “the counter interpretation developed in Reconstruction and its aftermath, with its more powerful assertion of the rights enshrined by the Constitution of the Second Founding and the power of the federal government to enforce them, remains available, if the political environment  changes”.

I agree: There is no reason why the 13^th Amendment cannot be reinvigorated as a weapon against enduring inequalities rooted in slavery, or the 14^th’s clause related to the privilege or immunities of citizens cannot be understood to encompass rights denied by slavery and essential to full membership in American society today, such as access to an adequate education, or even the ‘reasonable wages’ to which Lincoln said that freed slaves were entitled in the Emancipation Proclamation.”

Why, Foner asks,”in the 21^st century should the right to vote not be considered a privilege 

of citizenship enjoyed by all adult Americans?” Why indeed?