{"id":4887,"date":"2025-11-06T09:24:34","date_gmt":"2025-11-06T09:24:34","guid":{"rendered":"https:\/\/peykmagazine.com\/en\/?p=4887"},"modified":"2025-11-06T09:24:36","modified_gmt":"2025-11-06T09:24:36","slug":"second-founding-separation-of-powers","status":"publish","type":"post","link":"https:\/\/peykmagazine.com\/en\/2025\/11\/06\/second-founding-separation-of-powers\/","title":{"rendered":"Second Founding, Separation of Powers\u00a0\u00a0"},"content":{"rendered":"

Second Founding, Separation of Powers<\/h3>\n

Part 3<\/span><\/h3>\n
\n

By Hooshyar Afsar<\/b><\/p>\n

\n

\"\"<\/p>\n

Introduction<\/b><\/p>\n

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 \u201cany person\u201d) and changing the role of the federal government that many historians dubbed them as the \u201cSecond Founding\u201d and a \u201cconstitutional revolution.\u201d [2]\n

Separation of Powers and the Role of Individual Rights<\/b><\/b><\/p>\n

In today\u2019s world, civil and political rights\u2014such as freedom of speech, assembly, and belief; the right to a fair trial; and equality before the law\u2014are fundamental to the protection of individuals from government interference and people\u2019s 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. <\/span><\/p>\n

The United States Constitution starts with the lofty sentence: \u201cWe the People of the United States, in Order to form a more perfect Union \u2026 establish this Constitution for the United States of America.\u201d These words were written in 1787 and, at that time, \u201cWe the People\u201d 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 \u201cthe People\u201d defined above. In fact, as renowned historian Professor Eric Foner writes \u201c… the concept of equality before the law \u2014 something enjoyed by all persons regardless of social status \u2014- barely existed before the Civil War. Belief in equality coexisted with many forms of second-class citizenship. Individuals\u2019 rights were determined by numerous factors, including race, ethnicity, gender, and occupation.\u201d [3]\n

\"\"<\/p>\n

Historical Context of the Civil War: Freedom and Individual Rights<\/b><\/b><\/p>\n

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.<\/p>\n

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 \u201cthe question of civil and political status of the emancipated slaves\u201d on the \u201cnational agenda.\u201d [4]\n

Free blacks and those who later earned their freedom played a critical role in pushing for full abolition of slavery \u201caccompanied by full equality before the law.\u201d [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 \u201cslave\u201d 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.<\/p>\n

Moreover, in the mid-nineteenth century, individual rights that had to do with political participation were deemed \u201cpolitical rights.\u201d 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 \u2018perplexed\u2019 by the \u201csubtlety\u201d that voting right is a privilege wrote in a letter in 1867: \u201cThe more I think of it, the more it seems to me an essential right.\u201d [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 \u201cthe custodian of freedom\u201d and equal political rights for all races and ethnicities.<\/span><\/p>\n

Reconstruction: The Second Founding through Constitutional Amendments<\/b><\/b><\/p>\n

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 \u201cperfect union\u201d as stated in the first paragraph of the original constitution.<\/p>\n

The 13th Amendment<\/b><\/span>: 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 \u201cexcept as a punishment for crime,\u201d 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.<\/p>\n

The 14th Amendment<\/b>:<\/span> This amendment, which was primarily intended for equal protection before the law, established birthright citizenship and declared that no \u201c… 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.\u201d 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 \u201cany person.\u201d In the words of Professor Eric Foner: \u201c… the first section of the Fourteenth Amendment fundamentally transformed American\u2019s 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\u2013carried with it rights that could not be abridged.\u201d [6] The Fourteenth Amendment was ratified in July 1868.<\/p>\n

The 15th Amendment<\/b>:<\/span> This amendment stated that the right of U.S. citizens to vote \u201cshall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.\u201d As historian Anne C. Bailey wrote, \u201cformer slaves\u201d saw the right to vote as \u201cthe heart and soul of their freedom.\u201d [7]\n

All three of these revolutionary amendments ended with a section declaring: \u201cThe Congress shall have the power to enforce this article by appropriate legislation.\u201d 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.<\/p>\n

End of Reconstruction: Turning Back from Equality<\/b><\/p>\n

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, \u201cthe 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.\u201d [8]\n

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 \u201cslavery by another name.\u201d [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 \u201cBrown vs Topeka Board of Education\u201d to declare school segregation unconstitutional and start a process culminating in the 1960s federal civil rights acts discussed earlier. <\/span><\/p>\n

Lessons from the Second Founding for Our Community<\/b><\/span><\/p>\n

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] <\/span><\/p>\n

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\u2014even among the Republicans, including President Lincoln\u2014did 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.<\/p>\n

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\u2019s ratification for the 19th Amendment to guarantee women\u2019s 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: \u201cThe arc of the moral universe is long, but it bends towards justice;\u201d yet it requires action. It doesn\u2019t bend automatically by itself. People on the streets and other avenues of political participation are the ones that could bend it.<\/p>\n

References:<\/b><\/b><\/p>\n

[1]- https:\/\/peykmagazine.com\/en\/2025\/09\/08\/separation-of-powers-series-part-2\/#:~:text=This%20approach%20definitely,and%2015th%20Amendments<\/span><\/p>\n

[2] -Foner, Eric, Second Founding: How The Civil War and Reconstruction Remade The Constitution<\/i>W.W. Norton & Company, First Edition, P xx<\/i> (2019).<\/p>\n

[3] – Foner, p. 6.<\/p>\n

[4] – Foner, p. 27.<\/p>\n

[5] – Foner, p. 17.<\/p>\n

[6] – Foner, pp. 79-80.<\/p>\n

[7] – Foner, p. 94.<\/p>\n

[8] – Foner, p. 123.<\/p>\n

[9] – https:\/\/www.pbs.org\/video\/slavery-another-name-slavery-video\/<\/span><\/p>\n

[10]-https:\/\/www.nationalcivilwarmuseum.org\/lectures\/immigrants-in-the-civil-war\/#:~:text=Approximately%2025%20percent%20of%20the,and%20150%2C000%20of%20Irish%20descent<\/span>.<\/p>\n

[11] – Reid, Richard M., African Canadians in Union Blue: Volunteering for the Cause in the Civil War<\/i>, UBC Press, pp. 4\u20135 (2014).<\/p>\n

[12] – Foner, P xx<\/i>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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