The Second Floundering

An 1870 print by Thomas Kelly optimistically portrayed the impact of the newly-ratified Fifteenth Amendment.

The original Constitution’s compromise with slavery has increasingly prompted scholars to celebrate the Reconstruction amendments for producing a “second founding” that, according to Eric Foner, “created a fundamentally new document” with a more egalitarian guarantee of rights. In a chapter of their The Anti-Oligarchy Constitution, Joseph Fishkin and William Forbath call the Reconstruction Republican Party the “bearer of constitutional redemption.” Noah Feldman’s The Broken Constitution insists on a “rupture” between the old Constitution and “the moral Constitution we know and revere today.” The new amendments “were by turns applied during Reconstruction, betrayed by the rise of Jim Crow segregation, and redeemed by Brown vs. Board of Education, . . . the Civil Rights Act of 1964 and the Voting Rights Act of 1965.” With “redemption” still “incomplete.” these amendments “should be our beacon.”

The image of a new Constitution serving as a beacon betrays how indebted the rhetoric of the second founding is to John Winthrop’s “A Model of Christian Charity” and the tradition of American exceptionalism. Implicitly or explicitly invoking the authority of the nation’s two most celebrated speeches—Lincoln’s “Gettysburg Address” and Martin Luther King’s “I Have a Dream,” delivered before the Lincoln Memorial—that rhetoric carries with it Jeremiah’s admonition to the chosen people not to stray from its sacred mission. But Reconstruction is also a story about white supremacists’ alternative account of national redemption and, less noticed, voices from various political perspectives anticipating today’s worries that even an amended Constitution retains provisions incommensurate with democratic government. 

Especially worrisome was what a writer for the Atlantic Monthly in 1878 called an “antiquated and absurd” “electoral machinery.” Figures as different as Andrew Johnson and Charles Sumner called for electing the president by popular vote, but Congress approved none of nine officially proposed amendments to reform or abolish the Electoral College. “Direct election by the people,” the Atlantic article conceded, “is a change too vast to be thought of at all.” Instead, after Congress’s 1877 joint session to count electors lasted a month and a day, the author proposed a new Law of the Electoral Count. In 1887 Congress finally passed the flawed and ambiguous law that contributed to the confusion of January 6, 2021. After it passed, political scientist John Burgess attacked false reverence for the founding fathers as “chauvinistic piety” and prophetically warned that the country’s outdated system of electing a president "means the accumulation of error until nothing sort of revolution can correct it. It means the congestion of the body politic until nothing but blood-letting can relieve it."

The racist Burgess was one of many prominent Northerners, like Harvard president Abbot Lawrence Lowell, historian Francis Parkman, and Mark Twain, who linked the nation’s political woes to misguided dreams of universal suffrage. But Henry Cabot Lodge, praised today for sponsoring an 1890 Federal Elections Bill, assured southern whites not to worry about the Fifteenth Amendment. “Nothing in this bill or any other prevents a state from excluding ignorance from the suffrage. Massachusetts has an educational test. South Carolina can do the same.”

Albion Tourgée, who supported universal suffrage and would become Homer Plessy’s lead attorney, responded directly to Lodge. Considering the Fifteenth Amendment almost “worthless for the purposes for which it was devised,” Tourgée lamented that if the Fourteenth and Fifteenth Amendments “had been drawn with some knowledge of actual conditions and not with the idea that a stump-speech in the belly of a statute was a reliable specific for national cramps,” they “might, at least, have been severed from the humiliation of having people suppose we have law enough if it were enforced.” New York’s reactionary “Confederate carpetbagger” Roger A. Pryor countered by defending “The Sufficiency of the New Amendments.”

George Julian advocated redistribution of land for freedmen and, like Tourgée, opposed literacy tests. In 1868 he unsuccessfully proposed an amendment for women’s suffrage. Discouraged by the course of Reconstruction, he became a Democrat and used a journal founded by Lodge to express his fear that the US was lagging “behind the governments of the Old World in its manner of transacting the business of the people.” A British contributor to Lodge’s journal pointed out that people in the UK now had more direct say in choosing their chief executive than people of the US.

Foner acknowledges that compromises leading to ratification of the Reconstruction amendments left them open to “conflicting constructions,” but urges us to “embrace” this “ambiguity” for creating “possibilities.” But the Supreme Court interprets ambiguities. The interpretations of a Court dominated by Grant and Lincoln appointees caused Tourgée’s enemy, racist Thomas Dixon, to hail it as “the last bulwark of American liberties.”

Dixon had his own version of “the Second Founding” in which, after the bloody sacrifice of civil war, the united nation imagined by Lincoln was given birth when the Klan redeemed it from Reconstruction corruption. Put on the screen by D. W. Griffith, this vision was allegedly shared by Woodrow Wilson, himself a racist. Indeed, Wilson’s skepticism of Reconstruction measures allowed Griffith to cite him, along with Lincoln and Daniel Webster, in the film. But despite popular myth, Wilson almost certainly never praised the film. In fact, his response to Reconstruction was instructively double-edged.

Wilson and Griffith both portrayed Reconstruction as recalling, in Wilson’s words, “the darkest measures of an oligarchy or a despot.” But Griffith highlighted corrupt and ignorant freedmen usurping America’s unique governmental system whereas Wilson warned against scapegoating “ignorant elements.” The problem was Congress’s secret conduct of business by committees behind closed doors.  Granted, Wilson’s attack was partly aimed at Congressional Reconstruction. But only partly. For him, the US had systemic problems requiring constitutional change. Significantly, unlike Griffith, he looked outside US borders for alternatives and praised open debate in British parliament while proposing increased cabinet government for the US.

Although Wilson later abandoned his argument for cabinet government, he replaced it with a proposed economic Reconstruction to supplement the political one. His double-edged response to Reconstruction is a reminder that in addition to praising the second founding for addressing the racism Wilson shared, we need to acknowledge the numerous undemocratic constitutional provisions left untouched that especially affect people of color today. As the US flounders to catch up with nations guaranteeing universal suffrage and peaceful transfers of power, Wilson’s words from 1879 remain resonate. Worried about diminishing trust “not only in the men by whom our national policy is controlled, but also on the very principles upon which our Government exits,” Wilson, a strong proponent of a living Constitution, noted that “grave, perhaps radical, defects in our mode of government” are creating daily “anxiety about the future of our institutions.”