The Legal Civil War

“The Second Founding – How the Civil War and Reconstruction Remade the Constitution,” by Eric Foner, 2019

This is a book concerning constitutional law, basically arguing that the 13^th Amendment abolishing slavery; the 14^th Amendment insuring certain new rights and protections under the law and the 15^th, allowing the right to vote for most citizens, remade the U.S. Constitution in a more democratic direction and constituted a 2^nd “refounding” of the U.S.   Foner mitigates this optimistic view with a catalog of the later limitations put on the amendments by the Supreme Court.  This was capped by Plessy v. Ferguson, but includes the flawed wording of some amendments, failure to enforce them by the courts and government, a continuation of bogus ‘states’ rights’ and the persistence of color-coded U.S. capitalism.

So Foner’s key claim of a ‘refounding’ seems dubious, not to mention the worship of the archaic and ‘ancient edifice’ called the Constitution that forms the substrata of his claim.  Foner’s father, Phil Foner, was also a historian of the Civil War and of Reconstruction, but he was allied to the Communist Party and not so quick to celebrate the U.S. Constitution, even with improvements.  Eric is essentially a liberal Constitutionalist and that is the view he takes here, celebrating its ambiguity.

This is not just a story of law.  Foner illustrates the politicians, political Parties, freedman and abolitionist ideas and movements that eventually created the 13-15^th amendments.  The film “Lincoln” shows the moment at which the 13^th was passed into law in 1865, which resulted in an unprecedented celebration in the chambers of Congress, hats in the air.  A Constitutional amendment was passed because prior laws and presidential orders could have been over-ridden by a more right-wing Democratic Party President.  The caveat is that the 13^th still allowed slavery for prisoners.  The Jim Crow Black Codes in the South took this to town for 90 years - and still counting - creating more and more laws to imprison black people and some whites to do free labor for businessmen.  This still applies to prisons all over the U.S.  According to Foner, the 13^th was not enforced regarding debt peonage or even present importation of undocumented immigrants kept in various types of labor confinement.

“Mere exemption from servitude is a miserable idea of freedom…” so other amendments needed to be passed as part of the U.S. democratizing process.  Foner thinks the approval of the 14^th amendment in 1868 had the most legal impact later, especially citing the approval of gay marriage, women's rights and ‘gun rights’ related to it’s ‘equal protection’ clause.  In the 14^th’s ambiguous recounting of the ‘privileges and immunities’ of citizenship, due process and equal protection for all, it was also the first amendment to use the word ‘male’ as part of the text.  This angered the women’s rights’ suffragettes of the time, as well as a few abolitionists.   One of its notable innovations is that the 14^th declared birthright citizenship for the first time.  Yet Andrew Johnson vetoed the Amendment using the first ‘reverse discrimination’ argument, but he was overridden by Congress.  It passed because of the wholesale persecution of blacks and Unionist whites in the South by ex-Confederates, police, racist gun clubs and the Klan.

The 15^th  Amendment of 1870 allowed black men to vote, but not black women.   Along with women, indigenous Americans, Chinese contract laborers in western states, some white men in some northern states who could not pass property or literacy tests could not vote.  The 15th includes a provision to lower the number of representatives in a state if they blocked voting rights.  This has never been enforced.  It did endorse the expropriation without compensation of Southern slave wealth, which could be significant in the future regarding criminal corporations.

Foner is well aware that voting rights are once again under attack, especially after the decimation of the 1965 Voting Rights Act by the Supreme Court in 2013, an Act which looked at the unequal effect of ballot machinations.   States can once again openly use color-coded voting tactics to block people of darker color, students, some light-skinned working-class people, former felons and others from voting.  This is one reason why the U.S. gets a low grade by international bodies of ‘democracy.’   Another might be the Party oligopoly of Democrats and Republicans, a 'two party system' which mirror corporate oligopolies that control various economic sectors.

Celebrating the passage of the 13th - Only a Beginning

Foner points out the 13^th-15^th Amendments increased the power of the national Government and Congress in the implementation of voting and other rights over ‘states rights.’  This was a huge gain over the backward actions of individual states.  And yet we still have to deal with 50 states and thousands of counties regarding voting and most everything else.  The state/county system needs to be consolidated on an actual democratic and social basis, which includes the Senate.  But that would require a new kind of ‘Constitution’ and opposition to the cult of the Founders.

Of most import for those not having  darker skin, there are a number of instances in the book that show that with black rights and power, more rights and power accrued to lighter-skinned proletarians too, as black people have always been overwhelmingly proletarian.   For instance the Irish were prohibited from voting in certain northern states prior to these amendments because of property or literacy tests.  Nor were there almost any public schools for ANYONE in the South until Reconstruction. “White skin privilege’ is not an absolute at all, but actually results in significant material damage to lighter-skinned proletarians in certain ways.  It is sort of like "White boy, here is your cheese sandwich while we banquet – but look, the black boy only got a half slice of bread so you’re better than him!”  This is ignored by black nationalists, white liberals and racists, as well as their media.  This is why we need a multi-ethnic socialist labor front against the capitalists and their present identity charade.

Now fun facts from the book:
 1.   Well known, but nearly half of the 55 delegates to the ‘originalist’ 1787 Constitutional Convention owned slaves.  The right to vote was limited by state, gender, property ownership, indentured servitude, poll laws, ethnicity and skin color.  This is part of the reactionary origin of ‘states rights.”  As Foner puts it, slave-owners and their allies had controlled the country since its ‘founding.’  There is an argument to be made that this continues to today.

2.   If it hadn’t been for Reconstruction governments, the Amendments would never have passed southern legislatures. For instance Kentucky actually ratified the amendments in 1976.  Mississippi approved the 13^th Amendment in 1995.  No shit.

3.  Well known, but during the War of 1812 and the American Revolution, thousands of slaves gained their freedom by escaping through British lines.

4.   Chinese/Asians could not become U.S. citizens until the 1940s.

5.   Foner still writes as if there are different human races – an idea embedded in archaic U.S. government statistics and racist biology ‘science.’

6.  The 14^th didn’t allow blacks to vote, but got rid of the 3/5s clause in the original Constitution, counting African-Americans as 1 person in a tally of European American representation.  So African-Americans were counted, then uncounted!

7.  Women got the right to vote in the U.S. in 1920, long after other countries, with the first, New Zealand, clocking in in 1893.  So much for the U.S. being the ‘democratic’ paradise celebrated by our bi-partisan Constitution thumpers.

You might notice my cynicism.  Sorry.

Other prior blog reviews on this subject, use blog search box upper left:  “Slavery by Another Name,” “The New Jim Crow,” “Lincoln,” “Why the South Lost the Civil War.”

And I bought it at May Day Books!

Red Frog

July 17, 2020