The Fourteenth Modification, ratified in 1868, equally recast the federal government because the defender of particular person rights, together with the best to citizenship. It prolonged the Invoice of Rights to all People, assured “equal safety of the legal guidelines” and declared that no state “shall abridge the privileges and immunities of residents of the US,” a phrase understood to incorporate any variety of inalienable and basic rights claimed by the individuals however left unarticulated within the Structure. “The modification,” Foner writes,
asserted federal authority to create a brand new, uniform definition of citizenship and introduced that being a citizen — or, in some instances, merely residing within the nation — carried with it rights that might not be abridged. It proclaimed that everybody in the US was to get pleasure from a modicum of equality, in the end protected by the nationwide authorities.
As for the Fifteenth Modification, ratified in 1870, it too represented a sweeping growth of federal energy for the sake of equality, asserting that “The precise of residents of the US to vote shall not be denied or abridged by the US or by any State on account of race, colour, or earlier situation of servitude.” The place voting rights have been as soon as the area of the states, to be granted (or restricted) because the states desired, they have been now assured by the nationwide authorities. And whereas the modification was too restricted to stop Jim Crow voting legal guidelines — and left most girls disenfranchised for one more 50 years — it nonetheless opened the area for Congress to guard and develop People’ entry to the poll.
The Reconstruction Structure is a essentially totally different doc than the Structure of 1787. But our conversations round “unique that means” hardly ever take account of this transformation. Our politics would seemingly look very totally different if Reconstruction have been the idea for our widespread constitutional understanding, if founders’ stylish included Bingham and Sumner as a lot as Madison and Benjamin Franklin, and our jurists have been preoccupied with bringing the unique that means and intent of these amendments to bear on American life. Right here, Ruth Bader Ginsburg stands as a very sturdy instance, as a result of she used the Fourteenth Modification to struggle intercourse discrimination, giving extra and larger that means to the modification within the course of.
For a way of what this may appear like below the opposite Reconstruction amendments, contemplate the 1872 case Blyew v. United States, during which the Supreme Court docket overturned convictions of two Kentucky males arrested and tried for an assault on a Black household that left 4 individuals useless. On the time, Kentucky didn’t enable Black People to testify in opposition to whites and barred them from jury service, however the Civil Rights Act of 1866 allowed federal prosecutors to maneuver from state to federal courts any case “affecting” individuals who had been denied equal remedy within the states. The Court docket disagreed. By its reasoning, the Black witnesses to the crime weren’t truly affected by the state’s discrimination. The one affected individuals have been, as a substitute, the white defendants.
In his dissent, Justice Joseph P. Bradley, an appointee of President Ulysses Grant, rejected this declare that racial discrimination in jury choice was of no bigger affect. In doing so, he provided a sturdy imaginative and prescient for what the Thirteenth Modification may accomplish. Right here’s Foner:
Slavery, Bradley noticed, “prolonged its affect in each path, miserable and disenfranchising the slave and his race in each potential method.” Abolition meant not merely “hanging off the fetters” however destroying “the incidents and penalties of slavery” and guaranteeing the freed individuals “the complete enjoyment of civil liberty and equality.”
If we have been to attempt to construct an “unique that means” of the Structure across the Reconstruction amendments, we would come to this view of the Thirteenth Modification, which may open the doorways to vastly extra aggressive federal motion to scale back racial discrimination, racial inequality and different “badges and incidents of slavery.” An identical strategy to the opposite amendments can be equally transformative: The “privileges and immunities” of citizenship, for instance, may embrace the best to schooling and employment. And a Congress totally empowered to safe voting rights may act very aggressively to move off these states that search to deprive their residents of equal entry to the poll.
To take the Second Founding severely is to reject a imaginative and prescient that binds us to the Structure because it was in 1787. Additionally it is to embrace a broader imaginative and prescient of the “framing” of American democracy, one that appears to the reconstruction of the nation after its near-destruction as a lot as to its beginning and founding.
As a matter of historical past, the Structure is neither mounted in that means nor in construction; the boys who wrote and ratified it disagreed as a lot about what it meant as we do at present. However even when it had a singular that means, you’ll nonetheless have to choose about which Structure to stick to, both one written to safe the pursuits of a slender elite or one written for the sake of us all.