Review: Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution W. W. Norton, 2019 and Wendy Brown, In the Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West Columbia University Press, 2019

Eric Foner, Professor Emeritus of History at Columbia University, is known for his writing on the culprit values which led to the American Civil War, in his Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (1995), and for tracing the success and failures that came afterward, in his A Short History of Reconstruction (1990). Foner returns to the former topic with an emphasis on constitutional law that justified and also in some ways ignored some crucial issues (at least the judges who promulgated their interpretations of law did), involving property rights, as well as other rights, of that fraught time. Rights, of course, involve duties, privileges, and immunities from control, be it by fellow citizens or the government. Such issues remain crucial in our time as well, partly because so many were left either unresolved or resolved wrongly in this post-Civil War period, as this book documents.  

His emphasis is the 13th amendment that freed the slaves, the 14th amendment that protected their civil rights, and the 15th amendment that gave them the right to vote. Though in the preface he celebrates the virtues of ambiguity in written law, especially in constitutional law, since it allows for free reign in interpretation by judges, I consider it a double-edged sword since it also opens the door to absurd interpretations, especially when actions of  left-wing activist courts are bound to encourage and engender right-wing activist courts, and vice versa. The great strength of this book are the stories he tells about the key actors behind various proposals that through political compromises eventual resulted in constitutional amendments. This is good history, but don’t expect a detailed analysis of class conflict or of conflicting political philosophies or even understanding the alliances between those who sincerely feared an overbearing central government and those who looked for excuses to not exorcise racist prejudices. He mainly is on the side of the angels and bemoans the lost opportunities for not dealing with America’s original sin of racism.

Foner is a good writer, and his summaries of legal principles are effective, even when his own priorities differ, since he supports federal activism to raise up the downtrodden. He discusses constitutions as enforcing rights, that is to say natural rights (life, liberty and the pursuit of happiness, the latter understood as enjoying the fruit of one’s labor and the right to attempt to rise in society), civil rights (to own property, to go to court, to sign contracts, and to move about freely), political rights (to vote), and social rights (to act on achieving business and social relationships) (pp. 6-7).

During the Reconstruction Era the police power of the various states used to enforce public order, health, safety and morality were increasingly overruled by central government for enforcement of the above-mentioned rights resulting from amendments. This book in the final chapter describes the eventual failure of federal defenses of former slaves against the states and local governments, and not later federal abuses of these same powers as in the Palmer Raids after World War I, or the post-World War II period of McCarthyism that resulted in congressional witch hunts. 

Nevertheless, what Foner does offer is timely and useful for an initial understanding of the benefits and limitations of rights talk. For example, he emphasizes the work of pre-Civil War abolitionist and free black groups that argued that social rights can be broken down into private and intimate personal relations on one hand, and public rights based on equal access to public (even when privately owned) facilities, on the other. Regarding protecting these public rights, generally antebellum judges did not agree on the need, and post-Civil War judges eventually returned to old prejudices. 

Being able to interpret reality, without any evident ideological influence, has always been a test of the quality of a judiciary. The nature of judicial prejudices is a theme not greatly elaborated in this book, though such prejudices do play a major part in the final chapter entitled “Justice and Jurisprudence” where he claims that most post-Civil War Supreme Court justices were mediocrities from wealthy families with previous careers as corporate lawyers who had little knowledge or sympathy for the political arguments that spurred Reconstruction Era amendments (p. 129). In interpreting the 14th amendment, Supreme Court justices for the most part did not feel that this amendment could be used to attack discrimination by private businesses, but only against overtly discriminatory laws by states, which later became interpreted to mean “separate but equal” accommodations were acceptable, if one didn’t look too closely at whether equal really meant equal. 

The justices insisted that the amendment had not significantly altered the balance of power between states and the nation, and proved unreceptive to claims that a state’s inaction in the face of violence or other expressions of racial inequality provided justification for federal intervention. Federalism, however, had its limits. Increasingly, the Court construed the Fourteenth Amendment as a vehicle for protecting corporate rights rather than those of the former slaves, striking down state regulations of working conditions and railroad rates on the grounds that they violated “freedom of contract” protected under the Due Process Clause (p. 129).

As to the place of ideology in legal reasoning, there is of course a cultural context for understanding the values that underlie even constitutional law, that inheritance from traditions of morality and religion that permeated popular legal discourse under the guise of traditions of natural law. These have been somewhat displaced by positivist notions that each generation can decide for itself what is right and what is wrong according to their own legal standards, though the debate never ends and longings for return to natural law traditions never ends either, since both liberals and conservatives appeal to them for validation.

Regarding the search for legal values, and to return to the present, Wendy Brown in In the Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West discusses cultural and legal rationales for the present alliance between big business and big government. She criticizes the neoliberal political agenda for advocating removal of social protections by government under the guise that whatever government can do, private industry can do as well or better. She emphasizes the ideas of Friedrich Hayek who constantly warned that governments are a threat to liberty, but his ideas were misused to make the point that businesses under the sway of infallible markets under the sway of infallible and omniscient consumers simply cannot pose such a threat.

Political lobbyists built on his and similar ideas to create an intellectually deductive system based on the belief that not only people’s but corporations’ liberties are imperiled by reckless power-grabbing government. In a deductive rather than an inductive argument, Hayek really did not attempt to prove his points by reference to any detailed knowledge of actual economic history. Neoclassical economics provided mathematical models of hypothetical economies that have proven about as useful as hypothetical models of nonexistent gravitational systems are useful for space flight.  

Brown discusses the ideology of neoliberalism from both the point of view of those like Hayek who emphasize liberty against state  intrusions (though they usually do not oppose the intrusions of big business who often act against a communal morality they claim is an alternative to impositions of government), and on the other hand those like the ‘ordoliberals’ of recent Germany who assert that rule by technocrats (thus a certain kind of intrusive state) should be protected against resurgent democracy so that they can maintain the market economy rather than impose upon it serious ethical requirements or efficiency standards, a basic value stance that they take for granted.  “Hayek imagined an order of strictly limited and separated governmental powers, while today, courts make law, legislatures make political policy, and the executive branch issues ‘orders’ to work around both” (pp. 85 – 86).  Brown therefore concludes that just like Marxists in the states they ruled who discovered vexing complexities that they had not imagined before they came to power, so do neoliberals dream of a night watchman state that has proven to be a pipe dream because of a similar lack of realism.  

Brown emphasizes the present-day alliance in the U.S. by cultural neoliberals who in the tradition of Hayek want traditional, and often religious, influences on local communities to be free from government interference, and economic neoliberals who want the government not to interfere with business in any way. “Weaponized as individual and corporate prerogatives against equality and antidiscrimination laws,” she writes, “they become a means to attack and disrupt rather than foster social bonds and integration” (p. 119). 

The post-Civil War period of which Eric Foner writes shows the origins of these same dilemmas. In law this tendency toward formal rather than pragmatic reasoning poses the danger that judges will become much like theologians, talking about abstruse metaphysical systems, rather than the privileges, immunities, and rights of real people that are the creations and the justifications for law. The post-Civil War judiciary sadly illustrates the ramifications of this trend. 

For an example of similar historical naivete tantamount to that of the present-day Supreme Court, there is McDonnell v. United States, 136 S. Ct. 2355, 2365 (2016), a decision that decided political corruption does not necessarily involve being influenced by a payment or a political contribution, but that to be considered unethical the events must require accepting a demonstrable quid quo pro, and only then isa bribe. The great fear of this court is that otherwise there would be a chilling effect so that politicians would become somehow restrained from learning from fellow citizens, in the form of lobbyists. And so this vaunted and valued learning takes the absurd form that being influenced in an unchecked way by campaign contributions with the employers of these lobbyists then getting ever more extreme economic benefits, becomes the prototype for communicating with the public. For an analysis of this phenomenon by a Wisconsin federal District Judge see Lynn Adelman, “The Supreme Court and the Corruption of Democracy” in the Winter, 2019 issue of Raritan (pp. 6-21). Thus, one lesson of history from the Reconstruction Era, is that the more things change, the more they remain the same, at least regarding judges who think they are philosopher kings – very naïve philosopher kings.

Jerome Braun is a visiting scholar in Sociology at Loyola University, Chicago.