History doesn’t repeat itself, Mark Twain is supposed to have said, but it rhymes. More precisely, American history echoes, and what it echoes is slavery. Slavery—the acceptance of slavery as the price for national unity—is America’s original sin, and its consequences repeat themselves over and again, fading down the years but never still. We accept slavery as the price of nationhood; we reject that bargain; and then we strike it again in a new form.
It starts with the Declaration of Independence. The new nation could not have survived without the support of the slaveholding states, so the contradiction between the institution of slavery and the stated ideals of the Declaration went unacknowledged. In the Constitution, again, the need for union prevailed and the issue of slavery was repressed.
Eventually, of course, it erupted in the Civil War, the worst cataclysm of American history. The Civil War and the 13th Amendment settled the question of slavery. But history did not stop in 1865: the echo of slavery was the Black Codes, which sought to restore the institution in all but name. To fight against that resurgence, Congress proposed the 14th Amendment, and when the Southern states refused to ratify it, Congress dissolved their legislatures and put the South under military control. Two years later came the last of the Reconstruction Amendments, the 15th, which prohibited racial discrimination in voting and sought to allow the freed slaves to protect themselves through the political process.
Reconstruction worked. Black governments in the South operated integrated schools in Louisiana and elsewhere. Mississippi sent Hiram Revels to the Senate, the first African-American to sit in Congress. But precisely because it worked, it inspired violent opposition.
In 1877, America again chose unity over racial justice. In exchange for Democratic acceptance of the election of Rutherford B. Hayes, the Republicans withdrew federal troops from the South. What followed was called the Redemption of the South: terrorism and coups d’état, the destruction of the black Reconstruction governments by voter suppression, violence, and murder.
It took almost a hundred years for the Reconstruction amendments to regain their original meaning. It took a powerful social movement—the Civil Rights Movement—and support from the Supreme Court, the federal government and, once again, federal troops: the 101st Airborne in Little Rock, Arkansas. Historians call this era the Second Reconstruction.
On August 6, 1965—fifty years ago tomorrow, and almost precisely 100 years after the Confederate surrender at Appomattox Courthouse—Lyndon Johnson signed the Voting Rights Act into law. Just as Second Reconstruction decisions like Brown v. Board of Education had aimed to make real the 14th Amendment’s guarantee of equality, the VRA sought to revive the 15th Amendment’s promise of voting rights.
It worked. Black voter registration increased dramatically; blacks were elected to federal and state legislatures. But as John Roberts later observed, history did not stop in 1965. The echo took longer this time, but a Second Redemption came. In 1980, Ronald Reagan kicked off his presidential campaign with a paean to states’ rights, delivered in Philadelphia, Mississippi, where civil rights workers had been murdered sixteen years before. His Justice Department promoted a strategy of constitutional interpretation, originalism, which focused attention on the Founding at the expense of Reconstruction.
Just as it had in the 1870s, the Supreme Court pushed back against the Reconstruction Amendments. It adopted an ahistorical and perverse “colorblind” reading of equal protection, with the result that the main theme of its post-1980 equality jurisprudence has been the stamping out of race-based affirmative action. It narrowed its view of permissible enforcement legislation. City of Boerne v. Flores, United States v. Morrison, Kimel v. Florida Board of Regents, Board of Trustees v. Garrett: in a series of cases, the Court struck down congressional attempts to enforce the 14th Amendment. And in 2013, it got to the 15th: it decided Shelby County v. Holder, striking down part of the Voting Rights Act.
This isn’t the place to discuss the details of that decision. The point is simply to place it in context, as part of a Second Redemption that mirrors the first. The echo is not hard to hear. In 1883, striking down a Reconstruction civil rights law, Justice Bradley wrote that slavery was over and blacks must “cease to be the special favorite of the laws.” One hundred and thirty years later, striking down Second Reconstruction legislation, Justice Roberts wrote that “Our country has changed,” and “Congress must ensure that legislation it passes … speaks to current conditions.”
The late unpleasantness is behind us. That is the message of both the First and Second Redemptions. We can move into the future together; we can look forward, not back. But the offer to move forward is not in practice open to all on equal terms, not in 1877, or 1980, or 2015. History has not ended. The appeal to ignore the past is in fact a way of reviving it, and William Faulkner provides better guidance than Joseph Bradley or John Roberts. The past still reaches for us. It isn’t dead; it isn’t even past.
Kermit Roosevelt is a professor of law at the University of Pennsylvania Law School and the author of The Myth of Judicial Activism and the novel Allegiance. He is also a member of the Constitution Center’s Coalition of Freedom Advisory Board.
Editor’s note: Commentaries appearing on Constitution Daily reflect the opinions of their authors, and not those of the National Constitution Center.
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