Review for Chicago Tribune

Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America. Henry Holt, 2006, 352 pages.

Mention the Fourteenth Amendment in polite conversation and unless one is surrounded by lawyers or certain historians, eyes may glass over and heads cock to the side. "Americans know they have rights," contends Garrett Epps in this engaging book. "But too few understand that the source of our rights is not Philadelphia in 1787 but Washington [in] 1866" (p. 268). Epps, a law professor and novelist, draws on much recent historical scholarship in arguing that the Civil War and Reconstruction, forged a "second constitution" (p. 11) for the United States.

With a novelist’s eye for biographical detail, Epps has written an alternately enthralling and frustrating book. He reveals how a handful of 1860s Republicans responded to the challenge of Union victory and black emancipation by defining American citizenship for the first time, protecting the Bill of Rights in the states by federal mandate, and authorizing Congress to enforce civil, if not full political, rights. As Epps writes, "we live in the house they designed" (p. 12), a large, contested constitutional tent governed by the artful ambiguity of the "equal protection" clause.

Approved by Congress in June, 1866, the Fourteenth Amendment enshrined in the Constitution the ideas of birthright citizenship and equal rights. In the wake of the war in summer and fall, 1865, President Andrew Johnson, a Tennessean whom Abraham Lincoln had placed on his reelection ticket in 1864 because he was the only Southern senator who had not seceded with his state, attempted to rapidly readmit the ex-Confederate states to the Union without any consideration of black civil or political rights, and with astonishing leniency toward Confederate leadership. Johnson was an avowed white supremacist, a states’ rightist, and he richly earned his role as the villain in this political melodrama. His guiding motto for Reconstruction policy was "the union as it was and the Constitution as it is" (p. 49). When Congress reconvened after months of recess in December, 1865, the "Johnson states" were rejected by the Republican majority in Congress and a Joint Committee on Reconstruction was established with no pretense of bi-partisanship (12 Republicans and 3 Democrats) to investigate the fate of the freedmen and social conditions in the South, as well as how to put the Union back together. In that challenge of statesmanship, the Fourteenth Amendment emerged in six dramatic months of constitutional reinvention and transformative politics.

The Fourteenth Amendment’s framers faced several fundamental questions: defining citizenship and who held it; repudiation of all debts incurred by the Confederate states in their "insurrection" (p. 272) against the Union, including future claims of compensation for slaves; and disqualification of ex-Confederates from office-holding in the reunified nation. These three they settled in clear language. But three other issues provided all the drama: the extent of the right to vote for black men; the extent of civil rights declared "equal" before law; and how to reapportion representation of the former "slave seats" (p. 57) — those given southern states under the original Constitution’s "three-fifths" clause. From 1800 to 1860 the three-fifths clause endowed the slave states with between twenty and thirty additonal Congressmen. If the black population were now fully counted, the former slave states would have been reapportioned with as many as eighteen additional House seats as well as electoral votes.

Epps’s story recounts how a disparate group of Republican leaders wrested control of Reconstruction away from the vainglorious, inept Johnson and his virulently racist allies among Democrats, and crafted a "compromise" (p. 226) we both live within and fight over every day. The key architects of the Amendment included the Pennsylvania Congressman, Thaddeus Stevens, a radical abolitionist visionary of a harsh Reconstruction and a brave new world of racial egalitarianism in the South. Stevens was a masterful legislative tactician, but considerable intellectual leadership for the Amendment came from John Bingham, the bible-inspired Ohio Congressman, who wrote section one about equal rights. Bingham put the matter plainly. Emancipation, he believed, had forced Congress to finally apply the Bill of Rights to all Americans. We may vaguely take this for granted today, but it was a fledgling idea in 1866. Bingham, among others in his party, went about creating the powers to protect individual rights that so many of today’s Republicans seem to loathe in their hatred of "big government."

Other big players in this legislative drama were William Pitt Fessenden, Senator from Maine, a moderate Republican of great stature and brooding reserve, who chaired the Joint Committee. Fessenden was a loyal party man who believed that the war’s "results" (p. 133) had mandated a shift of Constitutional power from the states to Congress. Lyman Trumbull, Illinois Senator, had been the principal author of the two major confiscation bills and the Thirteenth Amendment during the war, as well as the Freedmen’s Bureau bill and the crucial Civil Rights Act of 1866 in its wake. The Massachusetts Senator, Charles Sumner, provided the recalcitrant radicalism born of his pre-war abolitionism and fame as the victim of a savage beating in the Capitol. And Robert Dale Owen, Jr., spiritualist and former utopian as well as Congressman from Indiana, gave this movement a genuine blueprint for equality and energy for the cause of black suffrage.

The central compromise in the Amendment was on black suffrage. The "uncomfortable fact" (p. 105) for Republicans was that most northern states still did not allow black men to vote. Indeed, in November, 1865, Connecticut overwhelmingly rejected a referendum for black male suffrage. So instead of an outright guarantee of the right to vote, the final version of the Amendment left control of suffrage to the states (an American tradition that has never died) and penalized those states in Congressional representation, proportionate to the number of black men they disfranchised. As Epps demonstrates, the "equality genie" (p. 109) was now out of the bottle. But the word "male" (p. 216) now appeared in the Constitution as well for the first time as well. He effectively folds the story of the women’s rights movement, and its principal two leaders, Elizabeth Cady Stanton and Susan B. Anthony, into the story. The ugly train wreck between old white and black male abolitionists and their former feminist allies is on full display here. This issue and others also ushers Frederick Douglass on to the stage for several cameo appearances.

It is in such cameos, and in a penchant for romantic melodrama that Epps’s writing gets in trouble. Exaggerations and strange biographical excursions mar an otherwise distinctive and engrossing literary voice. Sometimes we just don’t need all the back-grounding. Douglass’s alleged "full-blown love affairs" with white women and his "physical magnificence" (p. 143) don’t inform his opposition to the Amendment’s provision on suffrage. Nor does Sumner’s divorce. Fessenden’s love of his garden in Maine doesn’t illuminate the gravity of equal protection. Epps makes questionable judgments in claiming that North and South had always been "separate societies" and "mutually incomprehensible" (p. 66) And the idea that the "New South was not new at all" and only the "continuation of the antebellum white oligarchy" (p. 261) unnecessarily oversimplifies much recent scholarship. Comparing the daily Congressional Globe of the 1860s to today’s C-SPAN or ESPN seems a screenwriter’s misjudgments and not those of a historian. President Rutherford B. Hayes was not known to everyone as "His Fraudulency" (p. 263). Moreover, Epps has a annoying habit of using long quotations from other historians, sometimes merely for information. But some metaphorical flourishes sparkle. The "rulers of the white South" as "disembodied dark sorcerer[s] in a fairy tale… biding their time" (p. 265) until they could crush the Fourteenth Amendment worked for me. And the Amendment itself as the "yeast in a heavy mass of bread dough" that "began slowly to transform the Constitution" (p. 267) begins to capture the enactment’s significance.

Woven into these literary flourishes and factual quirks is Epps’s rousing story about the Amendment that forged, as he quotes one it its architects claiming, "a new birth of the nation" (p. 133). Epps also loudly announces that average Americans live every day with a "failure of memory" (p. 269) about how this measure changed the country. The equal protection clause has been the most malleable provision in the Constitution, used at times to support the rights of states, cities, corporations, immigrants, women, religious groups, gays and lesbians, students, and labor unions. It has advanced both tolerance and intolerance, affirmative action and anti-affirmative action, and it is the legal wellspring for the generations-old civil rights movement in America. The Fourteenth Amendment even provided the basis for the Supreme Court’s decision in Bush v. Gore in 2000. Epps’s book can help a broad readership realize that whenever Americans declare their "rights" they owe much of their expanded freedom to the end of slavery and the "second founders" (p. 165, 268) of the republic.

David W. Blight is author of Race and Reunion: The Civil War in American Memory. He teaches American history at Yale University, and is currently a fellow at the Dorothy and Lewis B. Cullman Center for Scholars and Writers, New York Public Library.