The strange career of the Reconstruction Amendments.

• Author: Foner, Eric
• Position: Moments of Change: Transformation in American Constitutionalism

As a historian who has devoted much of my scholarly career to the era of Reconstruction, I am most gratified that Bruce Ackerman has helped to resurrect the significance of those years as a central turning point in American constitutional development.(1) As far as it goes, I have no real quarrel with his narrative of the events surrounding the rewriting of the Constitution during Reconstruction. To be sure, if stripped of Ackerman's distinctive rhetoric--constitutional impasse, consolidating election, and the like--his account will be quite familiar to scholars of the period. Even experts, however, will be enlightened by his careful attention to the nuances of presidential texts and congressional debates. I commend Ackerman, in this age of social history, for reasserting the importance of careful study of Washington politics, and for his willingness to confront unflinchingly the ambiguities surrounding the ratification of the Reconstruction Amendments. My quarrel with Ackerman's account of Reconstruction derives from what I consider an excessively narrow definition of both the process of constitutional change and the historical actors who helped to produce it.

In the two volumes of We the People, Ackerman divides American history into long periods of normal politics, and three moments of constitutional change. While it would be unfair to ask him to deal with the long periods of "normality" in the same detail as the constitutional moments, his almost complete neglect of the periods preceding and following his three pivotal eras leads, I think, to a distortion of both the catalysts and the enduring legacy of change. In the case of Reconstruction, I do not think that a reader of Ackerman's account would fully understand either the origins of the Thirteenth, Fourteenth, and Fifteen Amendments, or the reasons why two of them were substantially nullified in the decades that followed their ratification.

Perhaps the dichotomy of normal and constitutional politics is simply too schematic to encompass the actual historical processes by which alternative constitutional visions have in fact arisen, or the importance of incremental changes and relatively obscure individuals in the narrative of constitutional change. If the Constitution is not a text but a state of mind, as Ackerman contends, constitutional change is taking place constantly. Certainly, the pre-Civil War years were filled with debates over the Constitution, debates that powerfully influenced the actions of the Thirty-Eighth and Thirty-Ninth Congresses.(2) One cannot explain either the intellectual roots or the specific language of the Reconstruction Amendments without devoting some attention to the antebellum era, and especially to the abolitionist movement.

The long contest over slavery gave new meaning to such key ideas as personal liberty, political community, and the rights attached to American citizenship. In elaborating their criticism of slavery and attempting to reinvigorate the idea of freedom as a truly universal entitlement, the abolitionists developed what might be called an alternative constitutionalism. Even as slavery spawned a racialized definition of American democracy and citizenship that became increasingly hegemonic in the prewar years, the struggle for abolition gave rise to its opposite, a purely civic understanding of nationhood. The origins of the idea of an American people unbounded by race lie not with the Founders, who by and large made their peace with slavery, but with the abolitionists. The antislavery crusade insisted on the "Americanness" of slaves and free blacks, a position summarized, for example, in the title of Lydia Maria Child's popular treatise of 1833, An Appeal in Favor of that Class of Americans Called Africans. Child's text insisted that blacks were compatriots, not foreigners; they were no more Africans...