I’m really enjoying Eric Foner’s new book.
This is probably the best book he has ever written.
The following excerpt comes from Eric Foner’s The Second Founding: How The Civil War And Reconstruction Remade The Constitution:
“Howard’s mention of the Bill of Rights highlighted the dramatic change in the federal system brought about by the Reconstruction amendments. The Bill of Rights had been designed to restrict the actions of Congress, not the states. Chief Justice John Marshall stated this unequivocally in the case of Barron v. Baltimore (1833): “these amendments demanded security against the apprehended encroachments of the general government – not against those of the local governments.” In legal terminology, Howard was described the “incorporation” of the Bill of Rights – that is requiring states to abide by its provisions – a process that has been going on for much of the twentieth century and into the twenty-first.”
As we previously noted, The First Founding and the Bill of Rights restricted the power of the federal government. The Tenth Amendment reserved all powers not explicitly granted to the federal government to the states. During the White Republic, there was no uniform definition of federal citizenship, no such thing as birthright citizenship and above all else there was no liberal state that had the power to enforce equal rights. Liberals appealed to the rhetoric of the Declaration of Independence.
“Thus, the Privileges or Immunities Clause of the Fourteenth Amendment applied not only to racial discrimination but to any state actions that deprived citizens of essential rights such as freedom of speech and the press, which many Republicans pointed out had long been abridged in the South. Before the war, for example, southern states adopted laws making criticism of slavery a crime without violating the First Amendment since these were state laws and not acts of Congress.”
The First Founding gave the sovereign states vast powers and enormous room to preserve illiberal institutions. It used to be a crime in the South to criticize slavery and to promote miscegenation. The Southern social order was based on patriarchy and paternalism.
“The Fourteenth Amendment for the first time elevates equality to a constitutional right of all Americans. It makes the Constitution a vehicle through which aggrieved groups and individuals who believe that they are being denied equality can take their claims to court.”
“Equality” wasn’t a part of the Constitution until the 14th Amendment except in the sense that each state had an equal number of senators and the possibility of a tie in the electoral college in a presidential election.
“As one historian has written, the Fourteenth Amendment’s first section set in motion a process whereby rights became attributes of a national citizenship rather than a welter of local statutes, traditional practices, and common law traditions, all of them grounded in inequality.”
David French would have us believe that this all goes back to “the American Founding.” Actually, it goes back to Reconstruction when it was forced on the South at gunpoint.
There were vociferous objections to the Fourteenth Amendment at the time:
“With equal persistence, Democrats contended that the amendment would destroy traditions of local self-rule and “invest all power in the national government. …”
“Democrats claimed that the bill’s “logical conclusion” was black suffrage, integrated public schools, interracial marriage, and complete “political” and “social” equality – a charge Republicans vociferously denied …”
“Debates over the Thirteenth Amendment and Civil Rights Act had already made clear that most Republican members of Congress did not see emancipation and the principle of legal equality as erasing the patriarchal rights of men, including black men, within their families …”
As Eric Foner notes, the Reconstruction Amendments and federal civil rights legislation did all these things and much more by empowering the federal government to enforce the nebulous concept of “equal rights” and by depriving the states of their traditional powers. No one at the time anticipated how the Fourteenth Amendment could be stretched to legitimize sodomy, miscegenation, gay marriage and transgenderism. Every criticism that was lodged against it at the time ultimately came true.
This was also true of the Brown decision in the 1950s. The critics of the Brown decision denied the existence of racial equality. They denied that integrated schools would accomplish the goal of eliminating the racial gap in academic performance by eliminating racial discrimination. 65 years later, the critics of Brown have been utterly vindicated. And yet, Brown has become sacrosanct even though it never worked. How much money has been squandered on rebuilding entire metro areas to escape integration?