Reconstruction as Revolution: The Fourteenth Amendment and the Destruction of Founding America
Kermit Roosevelt III* | 25.5 | Citation: Kermit Roosevelt III, Reconstruction as Revolution: The Fourteenth Amendment and the Destruction of Founding America, 25 U. Pa. J. Const. L. 1073 (2023).
What is the relationship between Reconstruction and the Founding? Conventional wisdom has it that Reconstruction was a fulfillment of Founding ideals. The Founding Fathers, on this account, believed in the ideals embodied in the Fourteenth Amendment—indeed, they stated those ideals in the Declaration of Independence. Because of the institution of slavery, however, they were unable to put those ideals in the Constitution written in 1787. And so the promise of the Declaration went unfulfilled for almost a hundred years, until the Reconstruction Congress wrote it into Section One of the Fourteenth Amendment. Reconstruction marked an enormous change in our constitutional order, the received wisdom acknowledges—we could call it a Second Founding. But the Second Founding is an act of continuity, not revolution: it vindicates the ideals of the first. It represents the triumph of true American values over the deviant institution of slavery and the Confederate society that rejected the principles of the Declaration. Founding America wins the Civil War and is redeemed by its victory.
Or maybe not. The conventional story outlined above, I will argue, is confused in many ways. Most fundamentally, it misunderstands the relationship between Reconstruction and the Founding. Rather than a realization of Founding ideals, Reconstruction is better understood as a rejection of them. Rather than the vindication and triumph of Founding America, the Civil War and Reconstruction are its repudiation and defeat. Founding America did not win the Civil War; it lost. It was not redeemed by Reconstruction; it was destroyed. And while there is some room for pride at the achievements of Founding America, what true patriotism demands of us is pride in its destruction.
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* David Berger Professor for the Administration of Justice, University of Pennsylvania Carey Law School.