Litigation

Cal. Litig. 2020, Volume 33, Number 1

The Second Founding: How the Civil War and Reconstruction Remade the Constitution By Eric Foner

Reviewed by Marc Alexander

Marc Alexander is a mediator and litigator at AlvaradoSmith APC. He authors California Mediation and Arbitration blog (www.CalMediation.org) and is a co-contributor to California Attorney’s Fees blog (www.CalAttorneysFees.com). He is a member of the California Litigation Editorial Board.

When President Lincoln began his Gettysburg Address, "Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal," he was acknowledging the Constitution was a flawed document. For his reference to 87 years, to a new nation, to liberty, and to equality, was not a reference to the Constitution, but rather to the Declaration of Independence. In the original Constitution, there was no reference to equality under the law. Nor did the promise in the Preamble to "secure the Blessings of Liberty to ourselves and our Posterity" include slaves. Referring to "the magnificent words of the Constitution and the Declaration of Independence" 100 years after the Gettysburg Address, Martin Luther King Jr. declaimed: "Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked ‘insufficient funds.’"

The 13th, 14th, and 15th Amendments, ending slavery, promising due process and equality under law, and providing that the right to vote was not to be denied "on account of race, color, or previous condition of servitude" addressed slavery and promises the Constitution had not fulfilled. The origins of those Reconstruction Amendments, the legislative battles to enact them, and their subsequent judicial interpretation and evisceration by the post-Reconstruction Supreme Court are the subject of historian Eric Foner’s The Second Founding.

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