Richard Primus: Why Reconstruction Matters
merican constitutional law has never come fully to grips with the Civil War. A constitution is a system of government, and no system of government fulfills its basic purposes if it cannot settle divisive political issues by non-violent means. In other words, a civil war is a constitutional failure. In the American case, it may be said that the Civil War of 1861-1865 marked the catastrophic failure of the Constitution of 1787.
Given the enormity of the collapse, it is remarkable that American civic culture has not internalized any real sense that the Constitution failed. One reason, of course, is that the victorious North did not tear up the written Constitution and start completely afresh. But there are also deeper reasons why Americans have been reluctant to see the Civil War and Reconstruction as regime-changing events. Long after Appomattox, the issues of the Civil War remained explosive in American politics. The status of African Americans was still a fighting matter one hundred years later, and even today national political cleavages track the geography of the old sectional division. Many Americans romanticized the Confederacy right through the twentieth century, suggesting that they could not wholeheartedly endorse the results of the Civil War. To ground the modern constitutional order in the Civil War and Reconstruction, therefore, would be to build the republic on a foundation about which many powerful people were at best ambivalent.
To regard the Founding as the one true source of our Constitution, by contrast, offers a great deal of comfort. If we are the direct successors to 1787, it must be the case that nothing earth-shattering has intervened. Celebrating the Founding allows us to repress the memory of slavery, of early America's failure to deal humanely and peacefully with that problem, and of the mass bloodletting that followed. The desire to erase that awful memory has been prominent for more than a century, ever since waving the bloody shirt ceased to be an effective electoral strategy for Northern Republicans. Woodrow Wilson, the first Southerner elected president after the Civil War, spoke on the fiftieth anniversary of Gettysburg of "the quarrel forgotten." And when the world war that followed Wilson's expression of relief spawned a tendency among historians to see mass warfare as the pointless tragedy of a blundering generation, the idea that the Civil War could have been a heroically generative event became less attractive still.
In the middle of the twentieth century, however, academic attitudes toward Reconstruction began to change. Huge black migrations from Southern farms to Northern cities altered the balance of power in national politics and made racial inequality an issue that neither major party could quite ignore. The confrontation with Nazism and the diplomatic and military imperatives of the early Cold War helped to incline more white Americans to think of the Civil War as an authentic crusade against slavery. Much of the historiography that had depicted Reconstruction as a foolish debacle was slowly discredited, in part because of its undertones (or overtones) of racism. In the 1970s and 1980s, historians such as Eric Foner emphasized the revolutionary nature of Reconstruction, depicting the era as a moment when Americans dared to make tremendous advances for justice. This new approach to history was not lost on constitutional lawyers. By the early 1990s, Bruce Ackerman presented Reconstruction as a second founding, a revolution in government comparable to that of the 1780s. Others have followed.
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Given the enormity of the collapse, it is remarkable that American civic culture has not internalized any real sense that the Constitution failed. One reason, of course, is that the victorious North did not tear up the written Constitution and start completely afresh. But there are also deeper reasons why Americans have been reluctant to see the Civil War and Reconstruction as regime-changing events. Long after Appomattox, the issues of the Civil War remained explosive in American politics. The status of African Americans was still a fighting matter one hundred years later, and even today national political cleavages track the geography of the old sectional division. Many Americans romanticized the Confederacy right through the twentieth century, suggesting that they could not wholeheartedly endorse the results of the Civil War. To ground the modern constitutional order in the Civil War and Reconstruction, therefore, would be to build the republic on a foundation about which many powerful people were at best ambivalent.
To regard the Founding as the one true source of our Constitution, by contrast, offers a great deal of comfort. If we are the direct successors to 1787, it must be the case that nothing earth-shattering has intervened. Celebrating the Founding allows us to repress the memory of slavery, of early America's failure to deal humanely and peacefully with that problem, and of the mass bloodletting that followed. The desire to erase that awful memory has been prominent for more than a century, ever since waving the bloody shirt ceased to be an effective electoral strategy for Northern Republicans. Woodrow Wilson, the first Southerner elected president after the Civil War, spoke on the fiftieth anniversary of Gettysburg of "the quarrel forgotten." And when the world war that followed Wilson's expression of relief spawned a tendency among historians to see mass warfare as the pointless tragedy of a blundering generation, the idea that the Civil War could have been a heroically generative event became less attractive still.
In the middle of the twentieth century, however, academic attitudes toward Reconstruction began to change. Huge black migrations from Southern farms to Northern cities altered the balance of power in national politics and made racial inequality an issue that neither major party could quite ignore. The confrontation with Nazism and the diplomatic and military imperatives of the early Cold War helped to incline more white Americans to think of the Civil War as an authentic crusade against slavery. Much of the historiography that had depicted Reconstruction as a foolish debacle was slowly discredited, in part because of its undertones (or overtones) of racism. In the 1970s and 1980s, historians such as Eric Foner emphasized the revolutionary nature of Reconstruction, depicting the era as a moment when Americans dared to make tremendous advances for justice. This new approach to history was not lost on constitutional lawyers. By the early 1990s, Bruce Ackerman presented Reconstruction as a second founding, a revolution in government comparable to that of the 1780s. Others have followed.