I’m continuing to enjoy reading Eric Foner’s new book The Second Founding: How The Civil War And Reconstruction Remade The Constitution in part because it sheds so much light on the ongoing Sohrab Ahmari vs. David French debate within mainstream conservatism.
“The Reconstruction amendments can only be understood in terms of the historical circumstances and ideological context in which they were enacted. These include how they were approved by Congress and the states; what those who framed, debated, and ratified them hoped to accomplish; and how other Americans understood and attempted to use them. In the chapters that follow my purpose is not so much to identify the one “true” intent of the Reconstruction amendments, as to identify the range of ideas that contributed to the second founding; to explore the rapid evolution of thinking in which previously distinct categories of natural, civil, political, and social rights merged into a more diffuse, more modern idea of citizens’ rights that included most or all of them; and to suggest that more robust interpretations of the amendments are possible, as plausible, if not more so, in terms of the historical record, than how the Supreme Court has in fact construed them.”
This is an important point.
Americans didn’t think about “rights” in the same way today that we did before the War Between the States. This is particularly true of the South. Every Southern state was a slave state. The Constitution had secured slavery. It was the states that determined citizenship, not the federal government, and blacks weren’t citizens of any states in the antebellum era outside of New England.
There was no such thing as negro equality – natural, civil, political or social – and the mainstream consensus of the antebellum era was a strong denial of it. There used to be sharp distinctions between these various categories of rights. Ultimately, the Supreme Court decided that blacks weren’t eligible to be American citizens at all in the Dred Scott decision, which is why the 14th Amendment had to be passed during Reconstruction to uphold the constitutionality of the Civil Rights Act of 1866.
“Citizenship certainly did not imply equality. Whites, male and female, born in the United States were commonly assumed to be citizens, but the status of free black Americans remained highly controversial. The first Naturalization Act, approved by Congress in 1790, limited the process of becoming a citizen from abroad to white persons. What of free blacks born in the United States? At the time of ratification, most of the original states, including some in the South, allowed free black men to vote if they met the property or other qualifications. As time went on, however, the slave states placed severe restrictions on their lives and increasingly refused to recognize them as citizens. Some northern states did, however, and all accorded them basic rights such as property ownership, trial by jury, and the ability to hold public meetings, publish newspapers, and establis their own churches. But nowhere did free African-Americans enjoy full equality before the law. Their situation was anomalous – one jurist referred to free blacks as “quasi citizens.”
Few people know this but blacks enjoyed more rights in the immediate aftermath of the American Revolution. There was an abolitionist movement that even promoted racial equality in the 1790s. Then it all fell apart during the Jefferson presidency, scientific racism triumphed and there was a steady erosion of black rights over the next half century that culminated in the Dred Scott decision. Blacks were once citizens of Pennsylvania, but lost citizenship there in 1838 due to the opposition of the Irish.
“But with the exception of Maine, every state that entered the Union between 1800 and the Civil War limited the suffrage to white men, and over time some of the original states rescinded blacks’ right to cast a ballot. On the eve of the conflict, black men enjoyed the same right to vote as their white counterparts in only five of the thirty-four states, all in New England. The identification of the polity – and citizenship itself – as a realm for white men became “so natural and necessary as to be self-evident,” as one historian has put it.”
The White Republic was the mainstream consensus outside of New England down to the War Between the States. Within New England, Connecticut also rejected negro equality until the Reconstruction era.
“But the concept of equality before the law – something enjoyed by all persons regardless of social status – barely existed before the Civil War. Belief in equality coexisted with many forms of second-class citizenship. Individuals’ rights were determined by numerous factors, including race, ethnicity, gender, and occupation. Unequal status relations were built into the combination of local laws, judicial rulings, and customs known as the common law. In “a common law court,” Senator Jacob M. Howard of Michigan declared during the Civil War, the idea of equality before the law was “not known at all.” In accordance with the common law of coverture, most of the rights of married women were exercised by their husbands. The common law of master and servant distinguished sharply between the rights and powers of employers and employees. Rights often included the ability to exercise authority over others – as in the case of slaveholders, employers, fathers, and husbands. This is one reason why the extension of rights to African-Americans during Reconstruction was seen by many whites as taking something away from them.”
There were vast restrictions and limitations upon individual rights before the War Between the States because the power relationship between the states and the federal government was reversed. There was no such thing as equality before the law. The states decided most of these matters.
“During the Second Founding, a new definition of American citizenship, incorporating equal rights regardless of race, was written into the Constitution. … In the legal culture of antebellum America, all sorts of activities – economic, political, personal – were subject to regulation by localities and states with the aim of securing not equality but public order, health, safety, and morality. Anti-black laws represented one component of a panoply of legislation restricting the rights of various groups, among them paupers, prostitutes, vagrants, and immigrants. Inequality, as noted above, was built into the common law. As long as citizenship remained subject to local definition and regulation, citizens would be manifestly unequal.”
It was the Confederacy that fought to defend the old America made up of organic communities that was a White Republic that was comfortable with inequality and limited government.
It was the Union that fought to create a new consolidated and centralized nation-state based on liberal democracy, free-market capitalism, industrialism and abolitionism.
In that war, one side fought for classical republicanism and the other side fought for liberal democracy. This is a subtle, but hugely important philosophical distinction.