The Unfinished Work of Reconstruction

      A day trip to Philadelphia's Independence Mall provides a valuable reminder of the unfinished work of racial justice in America. Slavery was America's original sin and recompense for that sin not yet fully paid, if at all.
      Philadelphia, it will be remembered, is the city where Thomas Jefferson drafted the Declaration of Independence in 1776 with its sweeping promise that "all Men [sic] are created equal" and "endowed . . . with certain unalienable rights, [including] Life, Liberty, and the Pursuit of Happiness." A decade later, delegates from 12 of the 13 states of the new nation gathered to draft a new Constitution in hopes of forming "a more perfect union" while tacitly bowing to the reality of human-chattel slavery in six of those states.
      The occasion for the visit was the opening of a new permanent exhibit at the National Constitution Center, "The Civil War and Reconstruction: The Battle for Freedom and Equality," a project spearheaded by the center's president, Jeffrey Rosen. The 3,000-square foot exhibit, accessibly designed and insightfully curated, features among more than 1,000 artifacts original copies of the three post-Civil War constitutional amendments that together amount to what many historians call "the Second Founding."
      Rosen, a friend and source for years, enthused as he welcomed invited guests for a preview of the exhibit on Tuesday [May 7]. The exhibit, he explained, "takes the story of the promise of the Declaration of Independence that was thwarted in the Constitution and then resurrected by Lincoln and Douglass and enacted in the Reconstruction Amendments." But Lincoln's promise of "a new birth of freedom" went unrealized as the three amendments were neutered by the connivance of white-dominated state governments and the shortsightedness of a Supreme Court that rejected Congress's attempts to enforce the amendments.
      The Thirteenth Amendment, approved by Congress with the war still going on and ratified barely eight months after the Confederacy surrendered, abolished slavery on paper. But it included a loophole, the "criminal exception clause," that allowed involuntary servitude "as a punishment for crime . . . ." That loophole, Rosen explained, effectively consigned many of the freed ex-slaves to servitude on the plantations still owned by the former slave masters.
      The Fourteenth Amendment, ratified in 1868 with its Equal Protection Clause, embodied the goal of equal rights long urged by Ohio's Republican representative John Bingham. It came to naught for a half-century and longer because of a series of Supreme Court decisions beginning with the ruling in the so-called Slaughterhouse Cases(1872) that the amendment protected only a limited list of federally guaranteed rights.
      All three of the amendments included sections specifically authorizing Congress to enact "appropriate legislation" to enforce their provisions. In 1876, however, the Court effectively nullified one of those laws: the Enforcement Act of 1870, which prohibited two or more persons from joining together to deprive anyone of constitutional rights. The 5-4 ruling in Cruikshank v. United States reversed the convictions of armed white insurgents who had ousted the elected black government in a Louisiana parish; the justices decided that the Fourteenth Amendment applied only to state action, not to private conduct.
      In a more serious setback, the Court applied the same rationale in striking down the law Congress had passed in 1875 to prohibit racial discrimination in public accommodations. The 8-1 ruling in Civil Rights Cases (1883) denied Congress the power despite the Fourteenth Amendment's Enforcement Clause to regulate private conduct. It took Congress another 80 years to try again by passing the Civil Rights Act of 1964, a law upheld the same year by a much different Supreme Court under Chief Justice Earl Warren.
      The Fifteenth Amendment, ratified in 1870, seemed on paper to guarantee black men, not women, the right to vote, but southern states found ways to get around it and block most blacks from voting until the Voting Rights Act of 1965. Some 80 percent of black men registered to vote as early as 1867 in southern states even before the Fifteenth Amendment, according to Henry Louis Gates Jr., the Harvard professor and author of the new bookStony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow.
      The Fifteenth Amendment notwithstanding, southern states began disenfranchising blacks not long after Reconstruction ended with the withdrawal of federal troops in 1877. Mississippi provided the template with a new constitution adopted in 1890 by an all-white constitutional convention that imposed literacy tests and poll taxes as requirements for voting. Gates, speaking with Rosen after touring the new exhibit, noted that in Mississippi's neighboring state of Louisiana the number of blacks registered to vote fell from 130,000 in 1898 to only 1,342 in 1904.
      Reconstruction produced "a violent backlash, a racist backlash," Gates explained. His book and his PBS series Reconstruction: America after the Civil War parallel the new exhibit in seeking to counteract the previously dominant view of Reconstruction as a misguided effort to subjugate the defeated southern states. It was instead an ambitious if short-lived effort to fulfill the revolutionary era's promise of equal rights that fell victim to violence, intimidation, and legal stratagems at the hands of resurgent white supremacy.
      With the present-day eruption of white supremacist ideology, Gates was stating the all-too-painful truth in saying, "We have never dealt with the issues raised by Reconstruction." Rosen appeared to agree: "We all share a collective responsibility to make our union more perfect."