Constitution Day: Monday, Sept. 17

America's other framers

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On this Constitution Day, close your eyes and imagine the people who framed America’s foundational law. James Madison, the “father of the constitution,” would be part of the picture. So would Benjamin Franklin, the constitutional convention’s great advocate of democracy; George Washington, its presiding figure; and Alexander Hamilton, Madison’s fellow author of The Federalist Papers.
What about John Bingham? Thaddeus Stevens? Roscoe Conkling? Likely not. But perhaps they should.
This year marks the 150th anniversary of the 14th amendment, which secured Abraham Lincoln’s “new birth of freedom” and transformed the constitution into what it has been in the 20th and 21st centuries: From labor laws to same-sex marriage, our most fundamental fights about the meanings of citizenship and the authority of government have been rooted in it.
Bingham, Stevens, Conkling and their colleagues on the Joint Committee on Reconstruction were its primary authors.
And yet, when we remember the constitution, we immediately think of the framers of 1787. Even though most Americans recognize the Civil War as the central event in American history — two historians famously dubbed it the second American Revolution — most of us don’t accord the figures who rewrote our fundamental law in its wake positions in the constitutional pantheon.
We would understand the constitution and American history more fully if we did. The “Reconstruction amendments,” the 13th, 14th and 15th , were the work of a generation of Republican Party politicians who shared a commitment to the doctrine of “free labor, free soil, free men.” These ideals, they believed, underpinned both democracy and economic progress; the “slave power” of the oligarchic South stood as the very antithesis of their vision for America’s future. The Republican Party itself only coalesced in the second half of the 1850s; in 1860, they gathered around a relatively unknown leader, former Illinois congressman Abraham Lincoln, and a platform dedicated to halting the expansion of slavery into the western territories (admitting that the constitution gave them no authority to move immediately against slavery in the states where it already existed).
Lincoln won; eleven southern states seceded, and the war came. Lincoln and the congressional Republicans moved — sometimes too slowly for abolitionists and the “radical” wing of the party — to undermine slavery, culminating with Lincoln’s 1863 Emancipation Proclamation.
They also took halting yet significant steps toward an embrace of civil and, eventually, political equality.
The end of the war — and the specter of the southern states’ return to national politics — presented the Republicans with a number of dilemmas. What was the status of slavery? Emancipation, after all, had been accomplished through the war powers. What was the definition of citizenship? The infamous Dred Scott decision was still on the books; and four million people were free from bondage. What rights did citizens have? Southern states had begun enacting “black codes” which curtailed the liberties of newly free people and struck many northerners as a revanchist attempt to recreate slavery by another name. And what would be the relation of the states to the national government?
The three Reconstruction amendments sought to answer these questions. They represented, as the historian Eric Foner once put it, the Republicans’ effort to fix in the nation’s supreme law, “beyond the reach of Presidential vetoes and shifting political majorities, their understanding of the fruits of the Civil War.”
Those fruits, it became clear, were freedom, equality, and political enfranchisement — though only for men. The 13th amendment, passed the Congress in January 1865 and ratified by the states that December, outlawed slavery and indentured servitude except in cases of criminal conviction (a rather significant exception). The 14th amendment, passed over the veto of Lincoln’s successor in mid-1866 and finally ratified on July 9, 1868, contained a few especially important provisions. Its opening sentence fixed the basic definition of American citizenship: “All persons born or naturalized in the United States”—including the four million formerly enslaved people. Its second sentence declared two fundamental rights of citizenship: due process of law and equal protection of the laws, and forbade the states, as well as the national government, from violating them.
The introduction of these provisions—birthright citizenship, due process, and equal protection—changed the American system of government profoundly. Beginning in the 1870s, both conservatives and liberals would use them to work vital changes in national law: landmark decisions on the regulation of business, racial segregation, the rights to privacy and to marry freely—all have turned on the 14th amendment. Through profoundly imperfect (particularly in its reinforcement of gender inequality), the 14th amendment turned the Constitution into a document Americans could use to fight for equal treatment.
There are many reasons why today we venerate the framers of 1787 and forget about the people who drafted the Reconstruction amendments. One, perhaps, is a desire for the kind of unity so conspicuously absent in today’s politics. Yet perhaps the story of America’s second framing should cast that desire in another light. Unity, after all, was bought at a steep price; and while America’s other framers may have been more obviously partisan and sectional figures, they were also more clearly on the side of democracy. Another reason may be that they present us, not with a badge of pride, but with an uncomfortable challenge, for the profound vision of equality implied in their work is still very much unrealized.
So on Constitution Day, spare a thought for America’s other framers. We are still fighting over their legacy, because we are still deciding what kind of a nation we want to be.

Mason B. Williams is assistant professor of leadership studies and political science at Williams College.


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