No African Americans served in the Congress that drafted the 13th Amendment, abolishing slavery. The same was true for the 14th Amendment, which added guarantees of citizenship and equality. So observes the distinguished historian Eric Foner in his lucid and succinct new book about the constitutional amendments that remade the United States after the Civil War. Indeed, because no woman served in the Congresses that produced the Reconstruction-era amendments, and because no woman voted in any of the states that ratified the 13th and 14th amendments, a clear majority of the adult population of the United States had little opportunity for formal input on the words that transformed the American Constitution. The result was that Reconstruction’s great accomplishments emerged from a country that was still far from a full democracy.
“The Second Founding” tells the story of the era’s constitutional amendments. Along the way, Foner asks how we ought to interpret the compromises enshrined in the text of the new amendments, given their grave democratic deficits. Best of all, the book offers a subtle and ingenious answer.
Foner’s book (the 25th in a prodigious career) documents how African Americans and aging abolitionists pressed new rights into the Constitution — and the ways Congress deferred many of the most important questions to an even less democratic body, the Supreme Court. In turn, the court issued a series of decisions that still shape constitutional law, limiting the force of the amendments and undermining the already meager prospects of the freedpeople.
Dozens of amendment proposals circulated in Congress at the end of the war. The first priority was to end slavery itself. Abraham Lincoln’s wartime Emancipation Proclamation had announced freedom for only 3 million of the nation’s 4 million enslaved people. In the eyes of the law, slaves living in the border states remained unfree, and so did most slaves living in Southern territory already controlled by the U.S. Army when Lincoln announced emancipation on Jan. 1, 1863. The long-term legality of wartime emancipation was also not entirely clear. At the very least, emancipation had done nothing to prohibit slavery in the South after the fighting finished. Accordingly, Congress passed the 13th Amendment in January 1865, adopting language from Thomas Jefferson’s Northwest Ordinance to announce that neither “slavery nor involuntary servitude, except as a punishment for crime,” would thereafter exist within the United States. Three-quarters of the states ratified the amendment by December.
The end of slavery, however, created a problem for the Republican Party because freedom promised paradoxically to increase the political clout of the South in Congress relative to the North. Under the infamous Three-Fifths Clause hammered out in Philadelphia in 1787, slaves had counted as three-fifths of a person for purposes of meting out representatives for each state in the House and the Electoral College. Emancipation, now counting African Americans in full, would increase Southern representation by as much as two-thirds. The 13th Amendment thus created the political imperative for the 14th, because on its own it would have handed a gift to the Civil War’s losers.