Who is entitled to the full rights of citizenship? And who is not? These questions are once again roiling U.S. politics in the Trump era. In his new book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, the eminent U.S. historian Eric Foner examines the passage of the 13th–15th amendments and subsequent efforts by the Supreme Court to undermine their impact.
Taken together, the 13th, abolishing slavery, 14th, establishing the rights of citizenship, and 15th, ensuring that former male slaves could vote, marked a vast expansion of formal equality in the United States. When the amendments were ratified, Republican leader Carl Schurz referred to them as both a “second founding” and a “Constitutional revolution.” Today, as a reactionary Supreme Court threatens to revoke the protections afforded immigrants and African Americans that were established during Reconstruction, Foner’s work provides a necessary exploration of how these rights originated.
THE INDYPENDENT: Prior to Reconstruction, how was citizenship defined?
ERIC FONER: It was not very well-defined. But the general opinion was that if you were born in the United States, you were a citizen — as long as you were white. There was clearly a racial definition of citizenship, starting with the first Naturalization Act in 1790, which said that only white immigrants could become naturalized citizens, through the SCOTUS Dred Scott decision of 1857, which declared that no black person, free or slave, could become a citizen. The anti-slavery movement and free blacks themselves fought vigorously for a non-racial definition, as evidenced by the frequent “Conventions of Colored Citizens.” And during Reconstruction, the 14th Amendment established birthright citizenship, meaning that anybody born in the United States was now considered a citizen — with the exception of Native Americans, who were considered members of their own tribal sovereignties.
Until the passage of the 13th Amendment in 1865, there had been no amendments to the Constitution in over a half-century. And few people know much about the 11th, ratified 1795, which covered the relationship of the federal and state courts, or 12th, ratified 1804, which deals with the Electoral College. What explains the interval?
The amendment process requires two-thirds of the Congress to approve and three-fourths of the states to ratify it. It was pretty hard to get those majorities on almost any issue. And certainly on anything related to slavery during the 19th century, there was not going to be three-fourths of the states. Other amendments were proposed during the period but none could muster the super-majority. But during Reconstruction, the Slave South was not represented in Congress, and when it came time to ratify the 14th and 15th there were new Radical Reconstruction governments in the South, with black men among the legislators voting on the amendments.
You describe a somewhat surprising coalition that forced Lincoln to support the 13th Amendment, including white women.
The initiative came from the women’s rights movement led by Susan B. Anthony and Elizabeth Cady Stanton. They suspended their campaign for women’s voting during the war to concentrate on emancipation. Even though the Emancipation Proclamation had been issued in January 1863, it exempted about 750,000 slaves in the non-Confederate States and therefore was not abolishing slavery entirely. So the abolitionist movement, with women at the forefront, launched a campaign for a Constitutional amendment. Lincoln initially preferred state-by-state abolition because slavery had been created by state law, and Northern states had eliminated it that way. But by the end of the Civil War, it just seemed easier to do it in one fell swoop via an amendment.
In the wake of Ava Duvernay’s 2016 documentary, 13th, the popular understanding is that while it eliminated slavery, the amendment ushered in forced prison labor, eventually allowing for the growth of mass incarceration. Can you explain?
The 13th Amendment states “neither slavery nor involuntary servitude shall exist, except as a punishment for crime.” Until recently, that criminal exemption clause was totally ignored. At the time the amendment was passed, it wasn’t debated in Congress or mentioned in the press. It was almost like boilerplate language, and most Northern state constitutions had similar provisions. In the 1860s there were hardly any prisons or prisoners. Unfortunately, the language created a loophole that allowed the Southern states to establish a giant system of convict labor, with prisoners, mostly African American, being rented out via convict leasing to mines and factories and treated very harshly. But it wasn’t a conspiracy created at the time of the 13th Amendment’s passage.
It’s surprising that the 14th Amendment — which is the most “active” of the three amendments today — was the least celebrated at the time of its passage.
When the 13th was passed, people in Congress threw their hats in the air and when the 15th was ratified, there were big parades of blacks and whites in the major cities. But with the 14th, there was no celebration and even the people who voted for it viewed it as “this is the best we can do right now.” It didn’t give black men the right to vote, as many Radical Republicans wanted. It also introduced the word male into the Constitution, angering the women’s rights movement.
Yet, as you say, the 14th is by far the most relevant to our current Constitutional order. It establishes who is a citizen and what rights citizens will have. It’s not written in racial language at all — equal protection of the law applies to everyone, including non-citizens. Most recently gay marriage became established as a right under the 14th Amendment. So its coverage has expanded enormously since its original passage but, ironically, the amendment has not served African Americans well as of late, as conservatives have used it to attack affirmative action and school desegregation.
How does the “birthright citizenship” provided by the 14th Amendment compare to other democracies?
No country in Europe today recognizes automatic birthright citizenship. If you are born in France as a child of an immigrant, you are not automatically a French citizen. You can become one through a process of testing and education. But if your parents are French, you are automatically a citizen. Of course, birthright citizenship is under attack right now, with the president wanting to eliminate it for the children of undocumented immigrants. But so far, it has not been rescinded.
How could it be rescinded?
There’s an old phrase, “The Constitution is what the Supreme Court says it is.” In its 1873 Slaughter-House decision, the Court essentially interpreted the privileges or immunities clause of the 14th Amendment out of existence, by arguing that the rights of federal citizenship didn’t apply to the states. It later nullified the 15th Amendment by upholding state disenfranchisement laws. I don’t think many people are confident that the current court would uphold birthright citizenship.
In your book, you present the 15th Amendment as a compromise that allowed for the exclusion of various groups. Its final wording is that “no citizens” shall be denied the right to vote on grounds of “race, color, or previous condition of servitude.”
The Radical Republicans wanted it to state that “all male citizens” would get the right to vote, as they weren’t yet ready to include women. That would have eliminated all the subsequent subterfuges to restrict the right to vote like poll taxes or literacy tests under Jim Crow, or voter ID requirements today. But the problem was that many northern and western states had restrictions on the right to vote. Rhode Island had a special requirement for immigrants, targeting Irish Catholics by requiring ownership of property. California didn’t want the Chinese to vote. Yet as long as the qualifications for voting in the states didn’t specify race or color, they were allowed under the 15th Amendment. Denying prisoners the right to vote has also been upheld by the courts because that’s not technically on the grounds of race or color.
Taken as a whole, you show that the Reconstruction amendments greatly expanded the power of the federal government over the states.
Absolutely. Each of the three comes with an enforcement clause, giving Congress the ability to pass legislation to strengthen the application of the amendment. That was unprecedented in our history. Prior to the Civil War, the greatest perceived danger was that the federal government had too much power. For example, the First Amendment begins, “Congress shall make no law…,” thus restricting the federal government from trampling on our civil liberties. States, however, could pass such laws, so you couldn’t give a speech against slavery in South Carolina.
With the Civil War, the states came to be seen as the real danger, because it was state law that had established slavery. The Radical Republican Charles Sumner called the federal government the “custodian of freedom,” meaning that it ideally would ensure that the states didn’t deny the rights established by the three amendments.
What lessons should we learn from the subsequent attacks on the amendments?
To use an old phrase from the 19th century, “the price of liberty is eternal vigilance.” Rights in the Constitution are not self-enforcing. While the Reconstruction amendments remained in place throughout the entire period of segregation, they were nullified in the South with the acquiescence of the rest of the country. As we’re seeing today, a conservative Supreme Court can abrogate any rights in the Constitution through judicial rigamarole. The era we’re living in now is similar to the late 19th century, with principles that seemed well-established under attack and in danger of being rescinded by the courts. As a historian, not a legal scholar, I’m not looking at precedents. I’m showing what the Reconstruction amendments were intended to accomplish. We don’t need to accept the Supreme Court’s subsequent interpretations as the true meaning of them.
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