The Fourteenth Amendment, ratified in 1868, similarly recast the government as the defender of individual rights, including the right to citizenship. It extended the Bill of Rights to all Americans, guaranteed “equal protection of the laws” and declared that no state “shall abridge the privileges and immunities of citizens of the United States,” a phrase understood to include any number of inalienable and fundamental rights claimed by the people but left unarticulated in the Constitution. “The amendment,” Foner writes,
asserted federal authority to create a new, uniform definition of citizenship and announced that being a citizen — or, in some cases, simply residing in the country — carried with it rights that could not be abridged. It proclaimed that everyone in the United States was to enjoy a modicum of equality, ultimately protected by the national government.
As for the Fifteenth Amendment, ratified in 1870, it too represented a sweeping expansion of federal power for the sake of equality, announcing that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Where voting rights were once the domain of the states, to be granted (or restricted) as the states desired, they were now guaranteed by the national government. And while the amendment was too limited to prevent Jim Crow voting laws — and left most women disenfranchised for another 50 years — it still opened the space for Congress to protect and expand Americans’ access to the ballot.
The Reconstruction Constitution is a fundamentally different document than the Constitution of 1787. Yet our conversations around “original meaning” rarely take account of this change. Our politics would likely look very different if Reconstruction were the basis for our common constitutional understanding, if founders’ chic included Bingham and Sumner as much as Madison and Benjamin Franklin, and our jurists were preoccupied with bringing the original meaning and intent of those amendments to bear on American life. Here, Ruth Bader Ginsburg stands as a particularly strong example, because she used the Fourteenth Amendment to fight sex discrimination, giving more and greater meaning to the amendment in the process.
For a sense of what this might look like under the other Reconstruction amendments, consider the 1872 case Blyew v. United States, in which the Supreme Court overturned convictions of two Kentucky men arrested and tried for an attack on a Black family that left four people dead. At the time, Kentucky did not allow Black Americans to testify against whites and barred them from jury service, but the Civil Rights Act of 1866 allowed federal prosecutors to move from state to federal courts any case “affecting” persons who had been denied equal treatment in the states. The Court disagreed. By its reasoning, the Black witnesses to the crime were not actually affected by the state’s discrimination. The only affected persons were, instead, the white defendants.
In his dissent, Justice Joseph P. Bradley, an appointee of President Ulysses Grant, rejected this claim that racial discrimination in jury selection was of no larger impact. In doing so, he offered a robust vision for what the Thirteenth Amendment could accomplish. Here’s Foner:
Slavery, Bradley observed, “extended its influence in every direction, depressing and disenfranchising the slave and his race in every possible way.” Abolition meant not merely “striking off the fetters” but destroying “the incidents and consequences of slavery” and guaranteeing the freed people “the full enjoyment of civil liberty and equality.”
If we were to try to build an “original meaning” of the Constitution around the Reconstruction amendments, we might come to this view of the Thirteenth Amendment, which could open the doors to vastly more aggressive federal action to reduce racial discrimination, racial inequality and other “badges and incidents of slavery.” A similar approach to the other amendments would be equally transformative: The “privileges and immunities” of citizenship, for example, might include the right to education and employment. And a Congress fully empowered to secure voting rights could act very aggressively to head off those states that seek to deprive their residents of equal access to the ballot.
To take the Second Founding seriously is to reject a vision that binds us to the Constitution as it was in 1787. It is also to embrace a broader vision of the “framing” of American democracy, one that looks to the reconstruction of the country after its near-destruction as much as to its birth and founding.
As a matter of history, the Constitution is neither fixed in meaning nor in structure; the men who wrote and ratified it disagreed as much about what it meant as we do today. But even if it had a singular meaning, you would still have to make a choice about which Constitution to adhere to, either one written to secure the interests of a narrow elite or one written for the sake of us all.