Eric Foner analyzes the influences of “The Making of Radical Reconstruction” that Radical Republicans had which contoured Congressional policy. In this reading, he has a section that talks about the Fourteenth Amendment. Initially, I felt that the Fourteenth Amendment was nothing more than an amendment that made all people born in the U.S., citizens, as well as have equal protection from the law. The Fourteenth Amendment to me was made to protect the rights of freed African Americans and established the Due Process Clause that gave the right to privacy for women and abortion rights because of Roe vs. Wade. But I never understood why the amendment mashed both these things together. After reading Foner’s interpretation on Reconstruction, and how the amendment relates to Radical Reconstruction I learned a couple of new things and realized I was wrong in my understanding of the Fourteenth Amendment. Foner mentions how the Republicans tried to put into the constitution their interpretation of the Civil War. As Foner states, “assembled in December 1865 to confront the crucial issues of Reconstruction: Who would control the South? Who would rule the nation? What was the status of the emancipated slave?” (Foner. Pg. 104). These questions mentioned by Foner show us concerns going on during the Civil War. He mentions how Republicans outnumbered Democrats in both houses which we see later on how Republicans use this to make a more permanent law for free slaves with the Fourteenth Amendment. Many issues were brought up during this Radical Reconstruction, questions such as if Southern states should be entitled to representation, status on the African American Suffrage, the protection of Civil Rights for newly freed slaves, and how to keep ex-confederates out of political power.
After doing a little more research on the Fourteenth Amendment I found out that John Bingham was the lead author of writing the rights that the freed slaves would have similar to how the Civil Rights Act is written. But Bingham felt that it was important to create something that would also take into consideration future problems and problems that weren’t as critical now but could potentially be a problem later on. This is why the Fourteenth Amendment has statements of general principles that would need to be interpreted instead of written rights like the Civil Rights Act. This connects to what Foner said in the reading, “For more than a century, politicians, judges, lawyers, and scholars have debated the meaning of this elusive language.” (Foner, pg. 115). It is crazy to think how thought out the Fourteenth Amendment was before it was put into place. Foner mentions the three-fifths compromise that totally slipped my mind when realizing what changes occurred once slaves were emancipated. Now that slaves were free, instead of only three-fifths of African Americans being counted now all would be counted.
I also found a fault in my understanding of the Fourteenth Amendment. I had always thought the Fourteenth Amendment was created to make everyone equal and the Due Process Clause was created to protect the rights to privacy for women to choose if they want an abortion or not, but I never took into consideration the date on which the Amendment was created. I realize now that the Fourteenth Amendment says nothing about abortions, it is just an interpretation of the Amendment. Additionally, I found out that the Fourteenth Amendment left many feminist leaders feeling betrayed. Women’s rights activists Susan B. Anthony, Elizabeth Cady Staton, and many others spoke up about the Fourteenth Amendment’s second clause which used the word “male”. As Foner quotes from Staton, “‘must not put her trust in man’ in seeking her rights.” (Foner, pg. 115). Because of this, feminists criticized Congress on how sex similar to race was not an acceptable reason for “legal distinctions among citizens” (Foner, pg. 115). After reading what Foner had to say about Radical Reconstruction, I wonder if there were problems when these Radical Republicans were trying to create legislation for these newly freed slaves. At this time there probably wasn’t any African American politician power so how did they figure out how to rightfully represent the African American community?
An excellent, thoughtful post. You’re correct both in arguing for the centrality of 14A to this period and in noting the different ways it has been interpreted over time (in addition to abortion, notable uses of 14A include its being interpreted to imply that corporations enjoy some of the same rights as individual citizens, and that political donations from corporations are a form of free speech). What’s even more mind-blowing (to me) is that, even after the ratification of 14A, the rights included in the Bill of Rights were viewed as only protecting citizens from abuses by the federal government, not the states. Since 1868, the process of applying the Bill of Rights to the states as well as the federal government, known as “incorporation,” has been a long and drawn-out process. This makes it easier to understand, I think, how states were seemingly able to get away with violating individual rights for so long, such as under the Jim Crow segregation laws that obtained from the 1890s to the 1960s.
You raise an interesting point at the end about the lack of African American participation in crafting these laws. This particular chapter focuses mainly on “top down” processes; but elsewhere in the book Foner does pay attention to the way that “bottom up” politics, including from mobilized groups of former slaves in the South, did influence Reconstruction, and also lays heavy emphasis on the role of Black elected officials. That said, your point still stands, and raises another question—did the failure of Reconstruction stem from the failure to enforce or implement laws like 14A, or were the laws themselves flawed, perhaps because their language left room for ambivalence or did not go far enough in some ways?