V. The Upheavals of the Civil War and Reconstruction: Transforming the Constitution
The Civil War and Reconstruction launched a series of constitutional transformations that were accompanied by fundamental changes in the operation of the federal judiciary. At the heart of this “second founding” were the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.[64] The Thirteenth Amendment abolished slavery.[65] The Fourteenth Amendment “constitutionalized the principles of birthright citizenship and equality before the law and sought to settle key issues arising from the war, such as the future political role of Confederate leaders and the fate of Confederate debt.”[66] The Fifteenth Amendment granted Black men the right to vote.[67] Each of the Reconstruction Amendments also vested Congress with the power to enforce these rights. In the realm of judicial power, the trend was toward stronger federal courts with more robust jurisdiction. Beginning in the 1870s, however, a series of narrow decisions from the Court severely limited Reconstruction’s revolutionary potential.
Prior to the war, in 1857, the Supreme Court had drawn attack from growing numbers of Americans for its immediately infamous decision in Dred Scott v. Sandford, in which Chief Justice Taney wrote for the Court that “that class of persons” whose “ancestors were negroes of the African race, and imported into this country and sold and held as slaves” were “not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”[68] To support his holding, Taney presented his own version of Founding-era history:
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.[69]
Frederick Douglass, the great abolitionist political leader, excoriated the decision in a series of public addresses. “You may close your Supreme Court against the black man’s cry for justice, but you cannot, thank God, close against him the ear of a sympathising world, nor shut up the Court of Heaven. All that is merciful and just, on earth and in Heaven, will execrate
