Imagining a Different Reconstruction Constitution

When historians give the litany of obstacles that kept Reconstruction from living up to its potential—especially its potential for achieving long-term change in the political and civil rights of African Americans—they usually include the Constitution. By the Constitution, I mean not only the original text of the document and its first twelve amendments but also the three Reconstruction amendments: the Thirteenth, which was ratified in late 1865 and abolished slavery; the Fourteenth, which was ratified in 1868, defined citizenship and prohibited states from denying to people "due process" and "equal protection" of the law; and the Fifteenth, which was ratified in 1870 and prohibited the disqualification of potential voters on the basis of race or previous condition of servitude.

How do historians posit the Constitution as a limit to Reconstruction? Some do so explicitly, as the co-author of a famous textbook did when he entitled a section on Reconstruction "Constitutionalism as a Limit to Change."¹ Others point out that the framers of the original Constitution tended to regard the national government as having limited powers. Thus the framers enumerated specific powers for the new Congress in Article I, Section 8, rather than following the model of the English Constitution and granting to Congress plenary power, much as the English Parliament enjoyed. Such an interpretation assumes that this adherence to limited national power was so anchored in American culture that even the Civil War could not move it from its moorings.

But by far the most common way that historians point to the Constitution as a limit to change is by investigating the origins of the language of the Reconstruction amendments and finding that lawmakers purposefully phrased these measures in a more limiting way than they might have. Such a critique of the amendments carries the implication that, had lawmakers changed a word here and shifted a clause there, they could have made things turn out for the better. Their failure to revise or amend the constitutional text properly kept the Constitution an obstacle to greater social and political change. Thus, in the case of the Thirteenth Amendment, historians make much of the fact that Senator Charles Sumner's proposal for language declaring all persons "equal before the law" failed to take the place of the final language, which seemed more narrow: "Neither slavery nor involuntary servitude, except as a punishment for crime, . . . shall exist within the United States."² In the case of the Fourteenth Amendment, lawmakers again rejected broad language—specifically, a proposal that "Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty and property." The joint congressional committee on Reconstruction ultimately rejected this language, which framed power in terms of what Congress could do—Congress had certain powers within the states—to the final language of the amendment, which phrased power in terms of what states could not do—"No state shall make or enforce any law."³ In the case of the Fifteenth Amendment, Congress rejected language declaring all males over the age of twenty-one eligible to vote, choosing instead language that again framed the issue in terms of what could not be done—the United States and individual states could not deny the vote on the basis of race or previous condition of servitude.⁴ By focusing on these subtle but significant differences in language, historians have suggested implicitly or explicitly that, had more far-reaching language been adopted by Constitution writers—in this case, Reconstruction-era congressmen and various pressure groups—then much less of Reconstruction would have been left "unfinished," to use the key adjective from the title of Eric Foner's famous book on Reconstruction.⁵

This premise might be tested by positing a counterfactual scenario. Imagine that the Reconstruction amendments had been phrased using the broadest language proposed, so that the text of the amendments put minimum restrictions on congressional power, on the nature of the rights...