Introduction And Index To Series On The Second Founding

Posts in this series
The Intent Of The Declaration Of Independence
Problems With The Standard Story Of The Revolutionary War And The Constitution
States Rights
The Better Story
Democracy Is Our Hope For A Better Future
The Thirteenth Amendmeent
The fourteenth Amendment
The Fifteenth Amendment
The Slaughterhouse Cases
Cruikshank, Gun Control, And Bad Rulings
The Major Questions Metadoctrine and The Slaughterhouse Cases
The Supreme Court Has Always Been Terrible

The term “second founding” refers to the fundamental changes made to the US Constitution and in our society by the 13th, 14th, and 15th Amendments. I had not heard this term before did some reading for this this post praising Justice Ketanji Brown Jackson’s questions at oral argument on the recent Alabama redistricting case. Justice Jackson actually knows her history, unlike the Fox News members of SCOTUS, and, well, me.

Shortly after writing that post I heard a podcast featuring Kermit Roosevelt discussing his book, The Nation That Never Was: Reconstructing America’s Story. I read it and was discussing it with a friend who recommended I look into the work of Eric Foner. That led me to his recent book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution.

In this series I’ll take up these two books. They’re short and very readable, and they complement each other. Foner focuses on the events of the period, while Roosevelt focuses on the legal/theoretical side.

The Nation That Never Was

Roosevelt teaches law at Penn, and yes, he’s the great-grandson of Teddy Roosevelt. The premise of his book is that we are telling the wrong story about our constitutional history. The conventional story starts by describing the Declaration Of Independence and the Constitution as our founding documents, incorporating our national values of freedom and equality for all, but hmmm, slavery was bad so we had a Civil War and Reconstruction and cured that problem, but then we found out about racism, and then Martin Luther King solved that problem and now things are great. It’s a story that the right-wing fetishizes.

The rest of us have a more adult view of our history. It doesn’t question starting point of the standard story, the part about the Declaration and the Constitution. But it adds all the horrors of the Jim Crow Era, the abuses of a perverted capitalism against workers of every description, and the horrifying treatment of Native Americans. It’s grim and unsatisfying, but at least it’s more accurate.

Roosevelt thinks we need a story that gives us real heroes, people who give us hope and inspiration for the future. He also thinks we need to look very closely at the founding documents, and the decisions of the First Founders as well as their omissions.

Roosevelt suggests a new story. First we had a system that was OK with the most brutal forms of slavery. Then we fought a war to wipe it out. We won that war at huge cost in blood and treasure. We changed the very nature of our society and we can take pride in that effort and the people who did it. We aren’t perfect. But the Civil Rights Amendments gave us the tools we need to reach for freedom and equality for all, and it’s a task for which we as citizens are all responsible.

Roosevelt discusses reparations, but I’m not going to address that, except to say this. I urge readers to take the time to read this article by Ta’Nehisi Coates. It’s a tough read. I certainly know I have benefited from the current structure of society, almost certainly at the expense of others who have suffered unfairly. I don’t know what to do about that, but it is unjust.

The Second Founding

Foner teaches history at Columbia. I haven’t finished the book yet, but so far there’s a lot of detail about our history I didn’t know or ever think about. Much of that has to do with the sausage-making behind the Civil Rights Amendments, and the arguments made by opponents of those Amendments. I read Heather Cox Richardson’s Letters From An American substack every day, in large part because she is attuned to the parallels between the politics of the Civil War Era and those of today. Here’s an example. In the same way, Ibram X. Kendi shows that arguments by racists never die, and Hannah Arendt shows that anti-Semitism is an endemic hate virus. White supremacy and Christian Nationalism seem to be ineradicable.


My current plan is to do a fairly short series. I’ll start with the Roosevelt book. There is a conventional view of the Declaration of Independence and the Constitution, but that story is utterly inadequate. Then I’ll turn to Foner’s book to look at the politics of the Reconstruction Amendments, and the way they were weakened by centrists and subverted by White Supremacists and the Supreme Court.

We’ll see what else pops up.

Taken together, I think these two books give us a good introduction to a different way of thinking about our history, one in which we can take pride, one that gives us heroes we can respect, one that sets our aspirations and hopes for our future and our descendants. The history is suitable for grown-ups, and therefore is probably illegal in Florida and Texas.

We can’t fix the past, but we can do better for the future, just as the Second Founders did. That’s what it means to be a citizen.

37 replies
  1. sfvalues says:

    I agree we need to get better had how we teach history, and stop making concessions to the revisionists. Your post has me thinking that the 13/14/15th amendments were really the third founding. The first founding was the Articles of Confederation, and the second was the Constitution, which replaced the Articles in 1789. Everybody forgets about the Articles because they were a complete failure and only in affect for about 10 years. Whenever I hear conservatives talk about shrinking the federal government down to almost nothing and leaving most things to the states, I want to shout “We already tried that! It didn’t work!” Out of curiosity, do Roosevelt and Foner talk about the Articles at all? Maybe that could be a topic for your series, if you think it’s relevant.

    • BobBobCon says:

      The modern day originalists desperately need to memory hole the Articles of Confederacy. If they admitted the fallibility of the founders, they’d need to admit the reasonableness of modifying any obtusely narrow adherence to their words.

      And if they admitted that the founders themselves had no great faith in their own wisdom, the modern day originalists’s doctrinal literalism would suffer even more.

      There’s absolutely no evidence that the founders themselves were originalists, and it’s absurd to think they’d ever agree with Scalia and his ilk.

      • wasD4v1d says:

        ‘originalism’ is the turnbuckle of a belief system with analogs in evangelicalism (inerrancy) and Roman catholicism (papal infallibility) – only the select few are ordained to interpret (or make up) how these are applied. And by belief, I don’t mean its opposite, faith. The Capitol was mobbed on Jan 6 by people whose heads were stuffed with beliefs, who had no faith in their country, the Constitution, their neighbors, nor (I would warrant) God. They prefer a flesh and blood human, one with no redeeming value.

    • earlofhuntingdon says:

      Yes, we need to get better at how we teach history, something Howard Zinn long complained about. That might be why we are also engaged in a fight about whether we teach it at all, thanks to fascist politicians like Ron DeSantis and the billionaires who back those like him, whose egregious levels of profits depend on our not teaching it.

      It’s not an academic exercise. It’s about whether we remain a democratic republic, something, like the climate crisis, Dems need to start treating as if our lives depended on it.

  2. Badger Robert says:

    I am looking forward to it. I may be able to get the Roosevelt book from the library.
    There were three steps.
    1. The loose confederation that fought the ARW. Small states, South Carolina and Georgia were very cautious about being governed by Virginia. But that system was unworkable so the Virginians and others insisted on
    2. The Constitution, with an amendment process. And there was the Bill of Rights, a set of very important limits on government intrusions into the lives of the wealthy.
    3. The system dissolved as part of the US insisted on expanding slavery, when the rest of the world was taking the small step up from slavery to colonialism.
    That’s where Foner and his work on Reconstruction begin. During Reconstruction the southern politicians and the partisan terrorists demonstrated that if the secessionist states had never withdrawn from Washington, the changes they feared so much would have taken decades, if they would have happened at all.
    Good luck.

  3. jaango1 says:

    After my completing my formal education, my business career of 2o years years took me into the Latin America Region, and thusly, I followed with my next change of 25 years for the arts and sciences of the political writer, and consequently, the Chicano Movement, Further, I am a zealot for “what comes next”. In short, my future.

    Take for what will certainly occur within the next 10 years. Demographics will come full circle and where “progressives” become the majority of a political swath among the Democratic Party. and furthermore, the Chicano Movement and its continuing Agenda, will come forth and where we, as progressives, will have to “reach out” to the “progressives” in the Republican Party and thereby rendering the “authoritarians” eligible for and readily acceptable for inclusion into our National Monument for Criminal Stupidity,

    And why?

    We, our nation’s racial and ethnics, will have a front row seat in “defining” our future. Take, for example, the idea of the Marital Mark will be consistent in that it challenges the Federalist Society and its super wealthy donors with the legislation that is consistent with “governments–federal, state, county and municipal–cannot interfere in a woman’s reproductive rights.”

    Need more be said?

    • esqTJE@23 says:

      This assumes the ‘take us back to (only) a democratic republic’ movement does not succeed and more than just the selected ‘elites’ will have a vote or a voice at all points in the future.

      That’s not what the some in powerful circles on the right have planned, from what I read. I don’t think the term they use to describe their plan is technically disenfranchisement, as they see it, but simply restoring minority (oligarchy) rule as the founders designed.

      Here’s an example of the ‘softer’ position, or way this is discussed

      but the more recent language/efforts discussed in FedSoc circles (see quote, for e.g. “somebody whispered, ‘We’re a republic, not a democracy’ — a tongue-in-cheek slogan that some conservatives have adopted as a way to slyly signal their approval of minority rule.”)

      And the best articulation I’ve heard of the plan to take away the plebes’ ability or right to vote could be credited to Cleta Mitchell. I looked, but can’t find the clip, where she basically says that our country was not established on the principle that EVERYONE be able to vote — only the oligarchy had that right (she doesn’t use that word, though). It wasn’t Jane Mayer’s 2021 New Yorker piece, nor the New York Times Aug. 2022 story about her training election observers. Anyone else help me out here? Was it her J6 interview?

      And if I recall, the plan is linked (?) with the one scheduled to start Jan. 20, 2025 (when Trump or DeSantis is sworn in) with the purge of all federal bureaucrats — that Jonathan Swann reported in one of his last Axios pieces. They’ve already got several thousand replacement America Firsters committed to replace the “deep staters” on day one (once Schedule F is in place by Executive Order). You know, the (re)making of the new republic.

      It may even be a “dystopian future” that *YOU* (naively?) describe, picturing that the masses will still have a right to vote at that point in the future.

      I am not at all predicting this will occur, but simply positing that if you think there will not be super strong resistance to “the nation’s demographic shifts” necessarily being what controls this nation’s outlook, I think there are many on the right who would want to disabuse you of that assumption. They know a “new majority” is coming, and they have absolutely NO plans to let that majority rule!

  4. timbozone says:

    I distinctly remember my shock in grade school when I discovered that the Founders, after the Revolutionary War victory over the British Crown, had floundered with the Articles of Confederation, their first attempt to create a new united political and economic construct. Our society functions on a mythical assumption that is not accurate when it comes to the seemingly miraculous origin of the US Constitution. It was no accident, there was significant improvement in major iteration, and yet it is not perfect.

    So, yes, it behooves all students and fans of US politics, its history and future, to not get stuck in the pernicious idea of Literalism. Instead of interpreting things badly and inconsistently while yammering about how perfect one’s interpretation is, it’s better to seek better clarity of purpose through a studied possibilities of improvement of our society’s organization (and now concurrent with survivability requirements of the human species).

    If there is another major overhaul to be in the works, it is best not to reinvent the mistakes of the past through ignorance, nor abet those who seek to keep old, less effective structures simply because of lack of imagination or via lack of proposal. I shall therefore try to read these books and follow along here as, even if nothing eventually significant comes of it, being prepared to make smart changes, if they should becoming pressingly necessary, is…smarter.

    • earlofhuntingdon says:

      A democratic Republic was a new thing in the late eighteenth century, and much despised by the established monarchical powers. It’s no surprise the Founders didn’t get it right the first time round.

      • P J Evans says:

        More than once I’ve cited the Articles of Confederation at people talking about the founders as if they were demi-gods and the Constitution as if it were perfection.

      • timbozone says:

        I was taught that this floundering was in the inability of the Confederation charter to actually lead to final payment of bonds and promissories debts issued by the Continental Congress during our Revolutionary War of Independence. Thus, the structure that came after the Articles of Confederation was aimed mostly at building a stable economy under a Federated Republic in order to pay off these debts. To sell this to the revolutionary and civic public at large, the Bill of Rights was tacked on to be ratified at the same time as the Framers’ Constitution, given that the Articles of Confederation weren’t seen as exemplary in the individual rights arena. Many decades later, following the US Civil War, the Constitution was radically changed again, adding on the additional amendments assuring equal protection under the law and outlawing things like slavery, etc. Since then, other than universal suffrage for women (and possibly the term limits for Presidents and the 16th Amendment’s taxation powers for Congress), there doesn’t seem to have been much significant change to the Federal Constitution on paper in how it impacts the economy and our society directly.

        Note that this website here has gotten me to look at >how< many of the Constitutional amendments have been involved in the creation of traditional frameworks of application by the Judicial Branch. What those evolving interpretations of administrative procedure are and how the ongoing process of the development of such frameworks of interpretation effect our society directly and indirectly is incredibly important to understand. In fact, the last time such framework was directly re-ordered/forced by a Constitutional amendment appears to have been with the 16th Amendment's specifically short-circuiting much of the Judiciary Branch ability to monkey significantly with what powers of taxation Congress does and does not have.

        I am curious what others feel need drastic overhaul within our Constitutional framework. (I personally would like to see some action on what and/or who is supposed to be considered an independent field or agency for the exercise of free speech… Of course, given modern understanding of individual vs collective freedoms in association, plus impending changed in technology, etc, "freedom of speech" is a complicated area to get significantly right on balance.) Perhaps reading the suggested books will jog more into a common clarity.

        • Epicurus says:

          The Articles of Confederation required unanimous agreement among the thirteen states/colonies to amend its Articles. It was a handcuffing provision. Re: bonds and promissory debts, among many other interstate (and probably intrastate) disputes, the states couldn’t agree on who paid what and how, and therefore couldn’t move forward without a more fluid amending procedure.

          I would argue the great, great, great article in the Constitution is Article V, the amending procedure. How it got included still puzzles me given the intransigencies of the time (and I have read some of the discussion surrounding its acceptance). The pro-slavery founders would had to have been aware that eventually the vote would get to a much greater audience and acceptance of slavery would fall. A handcuffing amending procedure like that of the Articles of the Confederation would have solidified the Constitutional ability to retain slavery since an easier way to amend the Constitution was an easier way to remove slavery. I imagine the pro-slavery types ultimately compromised because an Articles of the Confederation type amending procedure would have brought the same problems it caused previously in areas outside of slavery but important to them.

          The Framers were smart enough to say we are going to leave necessary Constitutional changes to our document that we can’t foresee to the people through this Article V amending procedure. We ought to take them up on it more often.

    • earlofhuntingdon says:

      Eric Foner has been one of the go to authors on the history of the Reconstruction era for some time. At eighty, this may be his last book. Happy he was able to write it for us all to learn from.

  5. PeteT0323 says:

    And, tragically, none of the books you list will ever see the inside of a Florida state high school and possibly a university/college. I purposefully left out elementary school, but maybe I shouldn’t.

    My limited point being that I'[m not even sure the conventional story you mention is even legal in Florida (and elsewhere) any more.

    Unless and until…we vote their arses out of power.

    • Tom-1812 says:

      Speaking of the Sunshine State, in 1911 the University of Florida fired one of its professors for teaching his students that Abraham Lincoln was a greater man than Jefferson Davis. That’s taken from Caroline E. Janney’s 2013 book, “Remembering the Civil War: Reunion and the Limits of Reconciliation”, which I highly recommend. It’s one of those books that are so absorbing you wish it had been twice as long. Professor Janney was moved to write her book as a reply to the occasionally sepia-toned version of the Civil War presented in Ken Burns’ 1990 documentary film. Her research reveals that the ‘Stillness at Appomattox’ was illusory and that the animosities that led to war in 1861 continued to spark and smolder well into the 20th century and beyond.

  6. Amicus says:

    Historian Woody Holton wrote a wonderful book, Unruly Americans and the Origins of the Constitution, that discusses the transition from the Articles of Confederation to the Constitution. He makes the case that at almost every turn the founding fathers produced a Constitution intended to curtail democratic rights within the bounds of a representative democratic structure. These include the Presidential veto, the bi-cameral legislature, the size of legislative districts, etc. He quotes numerous first hand materials where various members of the Constitutional convention complain about the prevailing problem of “too much democracy,” including public pressure (in cases mob behavior) to close the courts and prevent actions on debts.

    On the legal side, Yale professor Akhil Amir has done some very good work to show how the Supreme Court interpreted the 14th Amendment in a way to radically limit its potential reach, contrary to the drafters’ intentions.

  7. David_28FEB2023_0917hET says:

    Coates is great at cataloging the systemic oppression of blacks, but he’s terrible at making the case for reparations, despite the title of his book. He never explains exactly who today “deserves” reparations and never clarifies how much, and never touches with a 10 foot pole how it would work in reality- who exactly decides who is black enough to merit this money? Is some panel going to verify ancestry? Are we going to bring back terms like “octaroon?” What to do with blacks who did not descend from slaves? Or even blacks directly descended fro. Slave holders? What if somebody is 95% European, but 5% African? These are not small questions, yet reparation advocates have nothing to say about it.

    [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. In addition to publishing this comment as “D.” you’ve also commented under a different usernames, “David” and “DAVID MARQUETTE LEDOUX,” this past month. Your username on this comment will be temporarily edited to reflect the date/time of your first known comment until you have chosen a permanent compliant username. Thanks. /~Rayne]

    • Ed Walker says:

      The difficulty of reparations for reasons like those you lay out is one reason I don’t have any opinions. They won’t work unless a significant number of people agree, from all segments of society. The Coates article lays out the problem, but all solutions are difficult to assess.

      Maybe we could find ways to talk about this problem without the ranting and posturing of public discourse. I wonder if privately organized conventions with restricted access might be a start.

      • Susan D. Einbinder says:

        California created a commission that is going to issue its report soon on reparations. Stay tuned for its suggestions for redistribution ….

  8. Mark says:

    “The history is suitable for grown-ups, and therefore is probably illegal in Florida and Texas.“ 😂🤣. No truer words, MW.

  9. Epicurus says:

    Bon chance et bon voyage on this particular journey Mr. Walker. I hope you make it to your desired destination.

  10. Martin_21MAR2023_1436h says:

    The best book on this subject is Robert Ovetz’s 2022 book “We the Elites: Why the US Constitution Serves the Few.” Ovetz is a master researcher and authority on the Constitution, and he is scathing in his criticisms.

  11. James Sterling says:

    I’ve just started MYTH AMERICA; HISTORIANS TAKE ON THE BIGGEST LEGENDS AND LIES ABOUT OUR PAST. edited by Kevin M. Kruse and Julian E. Zelizer. Basic Books. C.2022. Chapters are not in depth, but offer solid documentation. Truth will out!

    [FYI — your duplicate comment published a minute later has been moved to trash. /~Rayne]

    • c-i-v-i-l says:

      I checked that out at the library last month and recommend it as well.

      I’ll also recommend a political science book, How Democracies Die, by Steven Levitsky and Daniel Ziblatt.

  12. jaango1 says:

    Democracies Don’t Die~

    My enduring thanks to Ed Walker, for this this and other threads. To wit, this Indigenous Hemisphere has experienced thousands of community ‘democracies’ over these many years. Thus, European-oriented historians did not and have not become familiar with languages that have been been utilized. For example, Yaquis and Apaches here in my wonderful Sonoran Desert, delivered democracy into Mexico and moved the Spanish and its version of Catholicism out. Today, the Yaquis and the Apaches favor the removal of the tax consequences that continues to be attributed to the Catholic Church given that women are prohibited for becoming priests or the High Achievers.

    In closing, Ed Walker may have the correct view when it comes to reparations with his notion for the ‘private’ approach to this stormy subject matter. And yet, when we think of reparations, another idea exists in that National Security and Defense should be applied to our immigration behavior, regardless of today’s weak-willed concession that moves along the lines of Russia, China, North Korea and Iran.

  13. vegeholic says:

    Thanks Ed for introducing this topic. I recently read Kermit Roosevelt’s book, and I agree that the framework he proposes has much to recommend it versus the “standard story”. It is past time for a counter-narrative to all of the so-called “originalists” populating the supreme court. As a slightly off-topic aside, there is another great book about the original Kermit Roosevelt and his father (TR) and their descent of an uncharted river in Brazil. It is called The River of Doubt, by Candice Millard. She is a great story teller.

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