The Second Founding: Reconstruction and the Hobbesian Social Contract
My speaking notes for an in-class presentation of my preliminary findings for my research paper on Hobbes' "Leviathan," Reconstruction, and the 14th Amendment
The Second Founding: Reconstruction and the Hobbesian Social Contract
Hobbes tells us that the state of nature is one where man lives in perpetual war “of every man, against every man” in “continual fear and danger of violent death” such that life is “solitary, poor, nasty, brutish, and short.” As Hobbes explains, people institute the commonwealth out of “foresight of their own preservation, and of a more contented life thereby; that is to say, of getting themselves out from that miserable condition of Warre” so that they can “live peaceably amongst themselves, and be protected against other men.”
We asked in class if this is an accurate account of the state of nature—is it really that bad? Hard for us to imagine so in modern times, but I would posit Hobbes was correct, and it happened not that long ago, right here in the United States
Quotes taken directly Hobbes’ Leviathan and citation of Hobbes in Ilan Wurman’s The Second Founding
Dexter Clapp was a Brigadier General for the Union Army during the Civil War, when he commanded the 38th US Colored Infantry Regiment. After the war, he became an agent with the Freedman’s Bureau, which was established to assist newly free black Americans as they made the transition out of slavery. These agents were the federal government’s boots on the ground for Reconstruction.
In February 1866, Clapp testified in Congress before the Joint Committee on Reconstruction on his experiences working in North Carolina:
“Some eight weeks ago several returned rebel soldiers went into the village of Washington and commenced shooting and beating Union men. Several assaults were made, and at least one Union man was publicly whipped in the streets, and some negroes were wounded. On their return they met on the public highway a negro. They first castrated him and afterwards murdered him in cold blood. These persons a short time afterwards gave themselves up to the civil authorities; but they soon escaped by overpowering the jailer. An order was issued to the police of that county to arrest them. This was not done. Meanwhile this party continued to commit outrages. I know that several negroes were shot by them. On the 25th of December the father of one of these parties rode up to a plantation, where two negro boys, ten and twelve years old, were playing in the yard. He took them one mile direct into a swamp, and there he shot them, killing one instantly and wounding the other.”
“Of the thousand cases of murder, robbery, and maltreatment of freedmen that have come before me, and of the very many cases of similar treatment of Union citizens in North Carolina, I have never yet known a single case in which the local authorities or police or citizens made any attempt or exhibited any inclination to redress any of these wrongs or to protect such persons. That seems to me the worst indication of the state of society there -- worse than the fact that these things take place.”
What he is describing is the complete abandonment of the state to meet its primary duty to citizens which, as Hobbes put it, is ensure they “be protected against other men.”
In legal parlance, this is what is known as denial of equal protection of the law.
There were several other issues that suggested a complete breakdown in the US of what Hobbes would have considered the proper duty of a commonwealth, in this case the rebel states and the federal government, to its citizens.
First, there was the denial of equal protection of the laws, as previously described.
Second, there was the denial of comity rights, which is just a fancy legal way of saying that as a citizen of the United States and a given state, another state cannot deny your rights (even if you aren’t a citizen of that other state) while you are visiting or passing through
In the South, and some free states, black Americans recognized as citizens in other states were denied respect of their rights. For example, black seamen from the North who worked on ships transporting goods were jailed while their ships were in port in the South. The Southern states claimed that free black Americans were not citizens, even though in many Northern states black Americans had been citizens since before the signing of the Constitution.
Third, there was the violation of federal rights.
Abolitionists tried to send pamphlets and other literature through the mail into the South and Southern postmasters refused to deliver these mailings, violating both the First and Fourth Amendments.
Fourth, there was the denial of due process, primarily through mob violence.
These are the unfortunately familiar stories of lynch mobs and other outrages.
Fifth, there was the intra-state violation of the state-defined privileges and immunities.
Legalese for saying states were discriminating against certain groups of its own citizens.
These are the infamous Black Codes, which placed burdens on black Americans and denied them certain rights, such as the ability to testify in court, serve on juries, and keep and bear arms for their self-defense, which was especially important given the state of affairs I’ve described.
Congress introduced three bills to deal with these issues: the Civil Rights Act of 1866 (which passed over President Andrew Johnson’s veto), the Privileges and Immunities Bill of 1866 (which did not pass), and the Second Freedmen’s Bureau Act of 1866 (which also passed over President Johnson’s veto)
In tandem, these bills sought to rectify the issues I’ve laid out. However, the bills were likely unconstitutional, which led to the passage of the 14th Amendment to provide sound constitutional grounding for the bills and make sure other crucial rights and principles could not be undone by a simple change in political opinions
Section 1 of the 14th Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The provisions of the amendment sought to rectify each of the issues highlighted earlier:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Citizenship for all black Americans, overturning Dred Scott and ensuring protection of comity rights
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”
Makes the Black Codes unconstitutional and helps protect rights from violation by the states
“nor shall any State deprive any person of life, liberty, or property, without due process of law”
Guarantee of due process
“nor deny to any person within its jurisdiction the equal protection of the laws.”
Guaranteeing the Hobbesian social contract will be met
Section 5 reads: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Congress now had the power to enact these bills and would step in where the states failed in their obligations
For this section, I heavily rely on Ilan Wurman’s illuminating The Second Founding
Congress would continue to embrace what is known as Radical Reconstruction through 1876, included the passage of the Civil Rights Act of 1875 which outlawed the segregation of public accommodations.
Ended when a recession hit and changed political tides, and the election of Rutherford B. Hayes was secured by a guarantee to end Radical Reconstruction
Reconstruction was also primarily hampered by a series of Supreme Court cases which I discussed in my last presentation, most notably the Slaughterhouse Cases, Bradwell v. Illinois, Cruikshank, the Civil Rights Cases, and Plessy v. Ferguson
Each case severely curtailed the 14th Amendment, and in one case essentially writing a provision out of the amendment, which made it difficult for the federal government and courts to effectively protect people’s rights, paving the way for segregation and Jim Crow
The 39th Congress engaged in an incredible undertaking to live up to the Declaration of Independence, fix the Constitution, and ensure the government fulfilled it Hobbesian duties to Americans, but was ultimately unsuccessful and undermined by the Supreme Court and changing political attitudes, leading to the Jim Crow Era.
Note: These are unrefined speaking notes meant to help me collect my research and thoughts up to this point. I will hopefully make a few more posts in the coming weeks to further hone my findings and put together a compelling thesis.