We are a week past July 4th, a time of BBQs, fireworks, and hopefully some national self-reflection. My July 4th post consists of the full text of the Declaration of Independence. The Declaration stated what America intended to be as a nation. We rightly celebrate America’s independence from Britain, expressed in both legal terms and ethical philosophy, and we honor the Founding Fathers for their efforts. However, America’s origin story did not end in 1776, and there is a second generation of founders who do not receive the intellectual attention they deserve. Today I write about one underappreciated legacy that we would do well to remember.
Many legal and political writers, myself included, often refer to “the Founders.” The word often collectively describes the men who led the American Revolution and ratified the Constitution, men like Thomas Jefferson, Alexander Hamilton, James Madison, and George Washington. As a rhetorical device its useful as long as the context is general Revolutionary times, but as with many loosely defined words, it is ripe for confusion and misinterpretation. The Founders did not speak in one voice, and vigorously debated all of the details of the new government. We are all familiar with the Federalist Papers, but written concurrently by other Founders were the Anti-Federalist Papers arguing for some fundamental differences. After the war was won, bitter disagreements arose over how the new country should be run, and a brief review of political history in the late 18th and early 19th century demonstrates that vehement American political disagreement is as old as America. The Constitution itself is the best expression of a single voice, and it is the product of compromise and negotiation. That said,
So what’s this about a second set of Founders? The country established when the Constitution was ratified in 1789 is not the country we have today, and that is a good thing. The first generation Founders included brilliant men who set up a system that is often the envy of the world, an enduring system of republican democracy, but it also included one of America’s original sins: slavery. The ideals of the Declaration of Independence were not wholly true when written; what was found to be self-evident and Creator-endowed was only for a portion of the population.
One could argue that the country founded during the American Revolution ended at the start of the Civil War, and was reborn in its aftermath, something I’ll call the Second Founding. This Founding greatly shaped the nation we are today, updating the Constitution to more fully reflect our stated ideals. It begins with the Reconstruction Amendments, especially the Fourteenth. I wrote a brief intro to the Fourteenth a few months ago. I again cannot overstate its importance. As I noted, the Bill of Rights as written did not apply to the states. Early America relied on strong state governments, sovereigns retaining great portion of their sovereignty as part of the constitutional compromise. The federal government, of course, is supposed to be limited to its enumerated powers. That left states free to pass laws against abolitionist speech and African-American citizenship. All of that changed with the Fourteenth Amendment. Section 1 is short and important, and we cannot read it enough:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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 the laws.
This was not just a fundamental legal change, for the rights of African-Americans and the states generally (although that process had to clear several hurdles, Supreme Court and otherwise.) This was a giant leap taken for the Enlightenment-era values expressed in the Declaration of Independence. Equality before the Creator was all well and good, but equality before the law was required for true freedom and human dignity. The fifth and final section ends the Amendment with fifteen words of great significance:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Fourteenth Amendment’s guarantees, like any legal guarantees, are only as good as their enforcement mechanism. To be clear this was only the beginning; Fourteenth Amendment jurisprudence has taken a winding road since its ratification, which continues today.
The Fourteenth Amendment leads, or perhaps I should say begins with, one person. The original Founders I listed above are widely known, and Abraham Lincoln has the national prominence he deserves. However, there is one man who should be familiar to all Americans: John Bingham. Bingham was elected to Congress as a Republican in 1854. He soon became known for speeches calling for racial equality under the Constitution, as he believed it was intended for the human race, not the white race. After the war, as a Congressional Representative, Bingham took the lead in drafting the Fourteenth Amendment. On the House floor he argued,
“[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, ‘cruel and unusual punishments’ have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.
It was an opprobrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment.
Why do I write about all of this? I believe that we place an excessive emphasis on the views of the original Founders, because it’s intellectually dishonest to imply that they were of one mind, and the brilliance of the Constitution cannot erase the stain of slavery. Before the hate emails start, I am certainly not arguing that we should ignore the original Founders. Other LTG posts have quoted the Federalist Papers, and I will continue to do so. Few politicians of any era wrote with the eloquence of James Madison. However, American Constitutional thought did not start and end in 1789. The country created at the end of the Civil War had changed for the better, legally and philosophically. It does a disservice to the Second Founders, and ourselves, to place so little importance on the Reconstruction Amendments, changes to American life that so many died for.