Lincoln and the Founding of America’s Second Republic

Americans often engage in the conceit that we have the oldest written constitution in the world.   But that’s a false story, and a dangerous lie to boot.

Yes, a Constitution was written in 1789.  And it fell apart in 1861 under the weight of its uncertainty on whether the United States was a collection of sovereign states or one nation—and even more so based on its moral bankruptcy on the issue of slavery.

And so, beginning in 1865, a new Constitution was forged, both in the halls of Congress and, as importantly, on the battlefields of Antietam, Bull Run and Gettysburg.  The new movie Lincoln does the inestimable service of telling that tale of the Civil War, not as a tragedy, but as the founding of our country as one truly “dedicated to the proposition that all men are created equal.”

For all that some conservative members of the Supreme Court talk about “original intent” in the words of the Constitution, remarkably little attention is paid to the intent of those who refounded this nation in the wake of the Civil War.  This is not a nation where the intent of slaveholders in 1789 is the only intent that matters in understanding constitutional law.  Instead, Lincoln reveals a far more diverse set of principal players in our constitutional drams—not just Lincoln himself, but House Speaker Schuyler Colfax, abolitionist firebrand Thaddeus Stevens of Pennsylvania, Secretary of State William Seward, Rep. James Ashley of Ohio and a wide range of others.

Some critics of the movie have wished for more focus on Lincoln’s personal existential journey to abolishing slavery (see a very good roundtable discussion here), but this is not a biopic of an individual but of a nation.  Lincoln is the key player – at least for this opening act of the constitutional drama – but the movie is masterful in showing that the real story the national will that he helped midwife among fractious factions to remake the Constitution.

And while Lincoln would exit the drama at the hands of an assassin, the rest of the players would continue the constitutional drama in coming years in enacting the 14th and 15th Amendments.  This new Constitution was clearly dedicated to ending the dogmas of “states rights” and giving Congress the power to enforce this new national consensus.

That “states rights” was the key issue in this Constitutional change is understood, if disputed by some, but the latter point of giving Congress, not the Supreme Court, the responsibility for enforcing equality is less recognized.   With the current Supreme Court reviewing whether Congress exceeded its powers under the 15th Amendment in renewing the “preclearance provisions” of the 1965 Civil Rights Act, the film is a strong reminder that constitutional drafters like Thaddeus Stevens (played by Tommy Lee Jones in the movie) were determined to challenge the power of the Supreme Court, which had essentially launched the Civil War by overturning Congressional legislation in the Dred Scott decision.

All three post-Civil War amendments provided—crucially, in the minds of Stevens—that the “Congress shall have power to enforce this article by appropriate legislation.”  Note that these were the first Amendments to the Constitution that specified not limits on Congressional power but instead its expansion—with not a word about a judicial role in limiting that power.   That’s not accidental for the Supreme Court was seen as the enemy of freedom in the nation at that point, having not only struck down Congressional limits on slavery in Dred Scott but had expanded the power of slave-owners to recapture runaway slaves in cases like Prigg v. Pennsylvania.

When I was counsel at the Brennan Center for Justice almost a decade ago, I cowrote a piece, A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments, that detailed both the legal history that informed the drafting of those amendments, as well as the political and legal fallout.

Unfortunately, the “New Birth” founders’ suspicions of the Supreme Court were well founded.  Even as Congress enacted laws to provide education and help for the freed slaves in the form of the Freedmen’s Bureau, cracked down on the Klan with voting rights laws, and – something few remember – banned segregation in most public accommodations, the Supreme Court would make a rearguard attack on the rights of the newly freed slaves. In the 1875 United States v. Cruikshank decision, the Supreme Court would free the ringleaders of a mob who murdered 100 blacks and allied whites who died defending their right to vote.  The Supreme Court ruled that, despite the 14th and 15th Amendments, Congress lacked the power to prevent private violence meant to undermine black civil rights.  This decision would only be the first in a series of decisions that would hand the former slave-owners the power to terrorize and oppress their black populations.

W.E.B. DuBois would later write that Reconstruction’s enemies “relied upon the court to do what Democratic members of Congress had failed to accomplish – and the Court through a process of reasoning very similar to that of Democratic legislators, deprived the enforcement legislation of nearly all its strength when it rendered its decisions…”

Here’s why this is all relevant today.  Cruishank is not dead law but was the basis of the decisions by the Rehnquist Court that revived “states rights” limits on Congressional power.  While Cruikshank itself was not cited directly by the either Chief Justice Roberts or the conservative dissenters in their discussions of limits on federal power in the Affordable Care Act decision earlier this year, they all cited to United States v. Morrison (where Congressional power to punish rape was limited in 2000), a decision which itself approvingly quoted Cruikshank for the proposition that the 14th Amendment “adds nothing to the rights of one citizen as against another” or the ability of Congress to take legislative action to protect those rights.

Which brings us to the upcoming decision on Congressional power to enforce the Voting Rights Act, the so called Shelby County cases, where the Supreme Court may sharply limit the provisions that require certain states to get “preclearance” before limiting voting rights of their citizens.

If that sounds like a replay of the 1870s, then that highlights the importance of Lincoln the movie in reminding Americans that we fought a Civil War to overturn anti-freedom decisions of a Supreme Court then dedicated to defending slavery.   Again, W.E.B. Dubois noted how history has either forgotten the statesmen who forged the post-Civil War Amendments or subjected them to “attack and libel” in the cause of vilifying the merits of Reconstruction.

We need more discussion about the real story of the Civil War, the shining period of Reconstruction – that brief period of 19th century civil rights – and the long shadow of Jim Crow imposed by that era’s Supreme Court and the danger that this Supreme Court is poised to emulate that dark period.

No movie is perfect, but in a cinematic tradition where racist narratives like Gone with the Wind and Birth of the Nation have been the major blockbusters about the era, it’s a tremendous gain for the nation to have a Spielberg-style blockbuster highlighting the heroism and ideals of those who ended slavery and ushered in a new Constitutional era.