Second Founding, Separation of Powers
Part 3
By Hooshyar Afsar
Introduction
In the second article in this series, I wrote about the importance of the Amendment Clause in the U.S. Constitution. [1] In this article, I will discuss the constitutional changes during the tumultuous Reconstruction years after the American Civil War, resulting in amendments that were so revolutionary in defining the rights of all citizens (and even “any person”) and changing the role of the federal government that many historians dubbed them as the “Second Founding” and a “constitutional revolution.” [2]
Separation of Powers and the Role of Individual Rights
In today’s world, civil and political rights—such as freedom of speech, assembly, and belief; the right to a fair trial; and equality before the law—are fundamental to the protection of individuals from government interference and people’s ability to participate in civil society and politics. Absent these rights, the role of the individual in making sure that separation of powers and a system of checks and balances is realized and strengthened in a democracy is rendered impossible. This role is manifested in the acts of electing, being elected, legislating, petitioning, educating, and protesting, among others.
The United States Constitution starts with the lofty sentence: “We the People of the United States, in Order to form a more perfect Union … establish this Constitution for the United States of America.” These words were written in 1787 and, at that time, “We the People” for the most part meant white men with a certain amount of property. Several years later, the first ten amendments to the constitution, known as the Bill of Rights, further defined civil and political rights, yet this was for the most part again intended for “the People” defined above. In fact, as renowned historian Professor Eric Foner writes “… 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.” [3]
Historical Context of the Civil War: Freedom and Individual Rights
It was January 1865. The U.S. had gone through almost four years of a bloody civil war that eventually left about 700,000 people dead and most of the Southern states in complete devastation. Defeat of the pro-slavery Confederate states of the South was imminent. Debate in the halls of the U.S. Congress was focused on the future of slavery and whether a constitutional amendment was necessary to end slavery (over which the civil war had been fought) once and for all.
While slavery had been abolished by the Northern states after the American Revolution and President Lincoln had issued the Emancipation Proclamation in 1863, slavery as an institution remained in place. The proclamation only freed the slaves in the Confederate states that remained at war against the Union; it did not touch the enslaved people in the border states of Delaware, Maryland, Kentucky, and Missouri plus West Virginia a few months later. Still, emancipation changed the character of the Civil War and put “the question of civil and political status of the emancipated slaves” on the “national agenda.” [4]
Free blacks and those who later earned their freedom played a critical role in pushing for full abolition of slavery “accompanied by full equality before the law.” [5] Congress, full of only white men, had a range of positions, from the Southern Democrats who fought against the Union as part of the Confederacy to preserve slavery to the Northern Democrats who wanted to only limit slavery to “slave” states to centrist Republicans who were on the fence when it came to abolition to Radical Republicans who wanted equality before the law for blacks. Yet, freedom started by ending slavery.
Moreover, in the mid-nineteenth century, individual rights that had to do with political participation were deemed “political rights.” When it came to voting as a political right, for decades after the formation of the United States of America, voting was considered a privilege rather than a right. Senator Charles Sumner of Massachusetts, after stating that he was ‘perplexed’ by the “subtlety” that voting right is a privilege wrote in a letter in 1867: “The more I think of it, the more it seems to me an essential right.” [5] Both Senator Sumner and Congressman Thaddeus Stevens of Pennsylvania, prominent leaders of Radical Republicans in the Congress, worked hard to go beyond the abolition of slavery and enhance the role of the federal government as “the custodian of freedom” and equal political rights for all races and ethnicities.
Reconstruction: The Second Founding through Constitutional Amendments
During the twelve-year Reconstruction period following the Civil War, three foundational amendments changed the nature and role of the federal government and paved the way for a much more “perfect union” as stated in the first paragraph of the original constitution.
The 13th Amendment: This amendment banned slavery in the United States and was ratified by three-quarters of the states in December 1865. Unfortunately, the exception clause in the amendment, stating “except as a punishment for crime,” opened the path for abuse in the Southern states, a pattern of abuse that has continued up to today with the system of mass incarceration of black and brown people in place.
The 14th Amendment: This amendment, which was primarily intended for equal protection before the law, established birthright citizenship and declared that no “… State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.” The concept of birthright citizenship was a revolutionary change that still distinguishes American society. Notably, the due process and equal protection provisions both apply not just to the citizens, but to “any person.” In the words of Professor Eric Foner: “… the first section of the Fourteenth Amendment fundamentally transformed American’s relationship to their government. The amendment 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.” [6] The Fourteenth Amendment was ratified in July 1868.
The 15th Amendment: This amendment stated that the right of U.S. citizens 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.” As historian Anne C. Bailey wrote, “former slaves” saw the right to vote as “the heart and soul of their freedom.” [7]
All three of these revolutionary amendments ended with a section declaring: “The Congress shall have the power to enforce this article by appropriate legislation.” Up to that point, none of the amendments to the Constitution, including those in the Bill of Rights, had put Congress in charge of enforcing them. In fact, there were four separate Civil Rights Acts passed by the U.S. Congress during the Reconstruction Era with the goal of enforcing these amendments and protecting individual rights of the freed people. This process continued into the twentieth century with the Civil Rights Act of 1964 and Voting Rights Act of 1965.
End of Reconstruction: Turning Back from Equality
The presidential election of 1876 ended in a stalemate. Republicans agreed to a great compromise of 1877 through which Rutherford B. Hayes, the Republican candidate, became president and, in turn, Democrats would control all of the Southern states. With the departure of the Union army from the South, black Americans lost their federal protection and the Confederates of the past, who had taken up arms against the Union over slavery, resumed their campaigns of terror and intimidation. In the ensuing decades after the end of Reconstruction, “the Supreme Court would grapple with the question of how far the constitutional system and the rights of citizens had been transformed. Its answers would spell disaster for black Americans for the Reconstruction dream of a democratic society of equals.” [8]
Beginning with the Mississippi Constitution of 1890, a new system of segregation and lynching terror was established in all Southern states. The Supreme Court ruled in favor of segregation in the famous case of Plessy vs Ferguson in 1896 which made open racism and denying black Americans from voting in the Southern states constitutional despite the 14th and 15th Amendment provisions discussed above. A system of convict leasing was established in the Southern states that brought about “slavery by another name.” [9] It took decades of struggle by black Americans and progressive people from all communities to bring about significant changes for Supreme Court to again use the 14th Amendment, specifically, in the case of “Brown vs Topeka Board of Education” to declare school segregation unconstitutional and start a process culminating in the 1960s federal civil rights acts discussed earlier.
Lessons from the Second Founding for Our Community
The big lesson from the Second Founding through the civil rights movement of the 1960s and up to the present moment is that the ongoing struggle to realize equal rights as a check on authoritarianism and strengthen democracy based on separation of powers never ends. Eventually it is the people on the streets who will bring about real change, many of whom have and will be immigrants. There were over 540,000 immigrants (the majority of whom were from Germany and Ireland) fighting for the Union army, representing 25 percent of the fighting force. [10] Of the approximately 50,000 Canadian immigrants who fought against slavery, approximately 2,500 were blacks. [11] Immigrants from Europe, such as Carl Schurz from Germany, who rose up to become a general of the Union army during the Civil War and was later elected as Senator, played an important role in ending slavery. [12]
The second major lesson from the Second Founding is that beliefs and ideas among people and elected politicians, both at local and federal levels, are not rigid. During the initial debates on the 13th Amendment, many politicians—even among the Republicans, including President Lincoln—did not support a constitutional amendment, but ended up voting or campaigning for it. During the resumption of work of the 39th Congress in December 1865, 70 new amendments to the Constitution were proposed, including one for abolishing the electoral college. The ratification of the 14th Amendment by three-quarters of the states took more than two years and required active reconstruction and voting by tens of thousands of black men in the former Confederate states of the South. In the later years of the Reconstruction, more than 1,500 black men were elected to office at local, state, and federal levels; even after all the setbacks, they remained in office in the South for over a decade.
Full realization of the Second Founding and equal rights is a continuum with ups and downs. It took almost 50 years after the 15th Amendment’s ratification for the 19th Amendment to guarantee women’s suffrage. In fact, the Equal Rights Amendment, prohibiting discrimination based on sex, was never ratified by enough states. Many historians believe that Reconstruction never ended and it continues with ups and downs. As Doctor Martin Luther King Jr said: “The arc of the moral universe is long, but it bends towards justice;” yet it requires action. It doesn’t bend automatically by itself. People on the streets and other avenues of political participation are the ones that could bend it.
References:
[1]- https://peykmagazine.com/en/2025/09/08/separation-of-powers-series-part-2/#:~:text=This%20approach%20definitely,and%2015th%20Amendments
[2] -Foner, Eric, Second Founding: How The Civil War and Reconstruction Remade The ConstitutionW.W. Norton & Company, First Edition, P xx (2019).
[3] – Foner, p. 6.
[4] – Foner, p. 27.
[5] – Foner, p. 17.
[6] – Foner, pp. 79-80.
[7] – Foner, p. 94.
[8] – Foner, p. 123.
[9] – https://www.pbs.org/video/slavery-another-name-slavery-video/
[10]-https://www.nationalcivilwarmuseum.org/lectures/immigrants-in-the-civil-war/#:~:text=Approximately%2025%20percent%20of%20the,and%20150%2C000%20of%20Irish%20descent.
[11] – Reid, Richard M., African Canadians in Union Blue: Volunteering for the Cause in the Civil War, UBC Press, pp. 4–5 (2014).
[12] – Foner, P xx.
