By the standards Democratic Sens. Joe Manchin and Kyrsten Sinema have set for federal action on voting rights, the 14th and 15th amendments to the Constitution -- two pillars of the post-Civil War effort to ensure equality for all Americans -- would never have become law.
Every Democrat in Congress at the time voted against both the 14th Amendment, which sought to guarantee all Americans (including the freed slaves) equal treatment under the law, and the 15th Amendment (which attempted to ensure the freed slaves the right to vote). Yet, despite that opposition, the Abraham Lincoln-era Republican Party considered the amendments so critical to expunging the legacy of slavery and creating a new national floor of civil rights for all Americans that they muscled them through Congress with barely any dissenting votes from their members in each chamber.
Today, by insisting on preserving the filibuster, Manchin, Sinema (and perhaps some other less visible Democrats) are, in effect, declaring that Washington should not act to protect voting rights against the restrictive laws advancing across red states unless 10 Senate Republicans agree to do so. With that declaration, they are fundamentally inverting the decision by the Lincoln-era GOP to prioritize protecting minority rights in the country over ensuring minority input in the Congress.
"If you had the same formula some are suggesting now -- 'We've got to have a Republican or we can't put this fire out' -- you wouldn't have had the 14th or 15th amendments if that had been operative back then," says Democratic Rep. John Sarbanes of Maryland, one of the lead sponsors of the sweeping voting rights legislation that cleared the House earlier this year but was blocked by a Republican Senate filibuster last week.
The starkly partisan confrontations about equality during the 1860s stand as one of the two moments when the US grappled with these issues on a sustained basis. The other came almost exactly a century later during the civil rights revolution of the 1960s, which presented a very different model for progress. The landmark Civil Rights Act of 1964 and Voting Rights Act of 1965 passed in a bipartisan manner, as the leadership and ideological center of each party in Congress united against a recalcitrant rump group of Southern segregationist Democrats.
But, while no historical parallel is exact, many historians and legal experts believe the "First Reconstruction" in the post-Civil War period, when one party had to act alone to safeguard civil rights, provides a much more relevant precedent for today's sharply divided partisan and social dynamics than the bipartisanship of the "Second Reconstruction" during the 1960s. Now, as during the 1860s, the real choice may not be whether Congress acts to preserve voting rights on a bipartisan or partisan basis, but rather whether Congress acts on a one-party basis or not at all.