Roe v. Wade

David Warsh: Perhaps we're in the Third Reconstruction

Former slaves voting in New Orleans in 1867. After Reconstruction ended, in 1977, most Black people in much of the South lost the right to vote and didn’t regain it until the 1960s.

SOMERVILLE, Mass.

“Reconstruction” (1865–1877)as high school students encounter it, is the period of a dozen years following the American Civil War. Emancipation and abolition were carried through; attempts were made to redress the inequities of slavery; and problems were resolved involving the full re-admission to the Union of the 11 states that had seceded.

The latter measures were more successful than the former, but the process had a beginning and an end. After the back-room deals that followed the disputed election of 1876, the political system settled in a new equilibrium.

I’ve become intrigued by the possibility that one reconstruction wasn’t enough.  Perhaps the American republic must periodically renegotiate the terms of the agreement that its founders reached in the summer of 1787 – the so-called “miracle in Philadelphia,” in which the Constitution of the United States was agreed upon, with all its striking imperfections.

Is it possible that we are now embroiled in a third such reconstruction?

The drama of Reconstruction is well documented and thoroughly understood. It started with Lincoln’s Gettysburg Address, continued with his Second Inaugural address, the surrender of the Confederate Army at Appomattox Courthouse; emerged from the political battles Andrew Johnson’s administration and the two terms of President  U.S. Grant; and climaxed with the passage of the ThirteenthFourteenth and Fifteenth Amendments to the Constitution – the “Reconstruction Amendments.” It ended with the disputed election of 1876, when Southern senators supported the election of Rutherford B. Hayes, a Republican, in exchange for a promise to formally end Reconstruction and Federal occupation he following year.

The shameful truce that followed came to be known as the Jim Crow era. It last 75 years. The subjugation of African-Americans and depredations of the Ku Klux Klan were eclipsed by the maudlin drama of reconciliation among of white veterans – a story brilliantly related in Race and Reunion: The Civil War in American Memory, by David Blight, of Yale University.  For an up-to-date account, see The Second Founding: How the Civil War and Reconstruction Remade the Constitution, by Eric Foner, of Columbia University.

The second reconstruction, if that is what it was, was presaged in 1942 by Swedish economist Gunnar Myrdal’s book, An American Dilemma: The Negro Problem and American Democracy, commissioned by the Carnegie Corporation. The political movement commenced in 1948 with the desegregation of the U.S. armed forces. The civil rights movement lasted from Rosa Parks’s arrest, in 1955, through the March on Washington, in 1963, at which Martin Luther King Jr. made delivered his “I Have a Dream” speech, and culminated in the passage of the 1965 Voting Rights Act.  Repression was far less violent than on the way to the Jim Crow era. There were murders in the civil rights era, but mostly they made newspaper front pages.

And while the second reconstruction entered on race, many other barriers were breached in those rears as well: ethnicitygender and sexual preference. In Roe v Wade the Supreme Court established a constitutional right to abortion a decade after the invention of the Pill made pregnancy a fundamentally deliberate decision.

How do reconstructions end?  In the aftermath of decisive elections, it would seem  – in the case of the second reconstruction, with the 1968 election of Richard Nixon, based on a Southern strategy devised originally by Barry Goldwater. Nixon was in many ways the last in a line of liberal presidents who followed Franklin Roosevelt. He had promised to “end the {Vietnam} war” the war and he did.  An armistice of sorts – Norman Lear’s All in the Family television sit-com – preceded his Watergate-inspired resignation. Peace lasted until the election of President Barack Obama.

So what can be said about this third reconstruction, if that is what it is?  Certainly it is still more diffuse – not just Black Lives Matter, but #MeToo, transgender rights, immigration policy and climate change, all of it aggravated by the election of Donald Trump.  This latest reconstruction is often described as a culture war, by those who have never seen an armed conflict.  How might this episode end? In the usual way, with a decisive election. Armistice may takes longer to achieve.

For a slightly different view of the history, see Bret Stephens’s Why Wokeness Will Fail. We journalists are free to voice opinions, but we must ultimately leave these questions to political leaders, legal scholars, philosophers, historians and the passage of time. I was heartened, though, at the thought expressed by economic philosopher John Roemer, of Yale University, who knows much more than I do about these matters, when he wrote the other day to say “I think the formulation of the first, second, third…. Reconstructions is incisive. It reminds me of the way we measure the lifetime of a radioactive mineral. We celebrate its half-life, three-quarters life, etc….. but the radioactivity never completely disappears.  Racism, like radioactivity, dissipates over time but never vanishes.”

 David Warsh is a veteran columnist and an economic historian He’s proprietor of Somerville-based economicprincipals.com, where this essay first ran.

Chris Powell: Liberals extol precedent when it serves them

U.S. Supreme Court Building.

U.S. Supreme Court Building.



Liberals throughout the country applauded three years ago when, proclaiming that the U.S. Constitution requires states to confer same-sex marriage, the U.S. Supreme Court reversed 44 years of precedent in constitutional law as well as practice going back to the adoption of the Constitution, in 1789. 

Liberals in Connecticut also applauded three years ago when the state Supreme Court ruled capital punishment unconstitutional, thereby reversing the state and federal constitutions themselves, which always have explicitly authorized capital punishment and still do. 

But a few weeks ago liberals criticized the U.S. Supreme Court for reversing its 41-year-old decision holding that government agencies could require their employees to pay dues to unions they didn't want to join. The precedent should have stood, liberals said, because it  was precedent and much policy had grown up around it. 

And now that President Trump's nomination of Judge Brett Kavanaugh to the U.S. Supreme Court is suspected of inviting a challenge to the abortion rights declared in the court's 1973 decision in Roe v. Wade, liberals -- including Connecticut Democratic Senators.Richard Blumenthal and Chris Murphy -- again are freaking out about possible disrespect for precedent. But Roe itself also reversed precedent going back to 1789, since prior to Roe abortion law always had been left to the states. 

Of course when it comes to the Supreme Court these days respect for precedent doesn't really concern liberals or conservatives. Their concerns are only policy and power. If precedent gives them policy and power, they support it. If it doesn't, they oppose it. 

With the  court led by Chief Justice Earl Warren Court in the 1950s and '60s liberals began elevating their policy desires to constitutional requirements, since constitutionalizing an issue could push democracy out of the way when it became inconvenient. Now that they are in power nationally, conservatives are playing this game too. 

As a result the country is being led to believe that the Constitution is just anyone's wish list, requiring whatever one likes and prohibiting whatever one dislikes, led to believe that there is no distinction between what the Constitution says and what policy should be. 

But contrary to the suggestion of Connecticut's senators, Gov. Dannel Malloy, and other leading Democrats, there is no danger that the U.S. Supreme Court will criminalize abortion. For the court has no such power. Even if the court reverses Roe, abortion policy would just return to the states and Congress. 

Connecticut generally favors legalizing abortion, at least prior to fetal viability, and so state law permitting abortion likely would be preserved. But state law on abortion goes against  public opinion by letting minors obtain abortions without the consent of their parents or guardians, even as this policy has concealed the rape of minors. Ironically, while waiving parental consent for minors getting abortions, Connecticut law requires it for minors getting tattoos. 

Startling as it might seem in Connecticut, opinion in some states is hostile to abortion and opinion nationally would prohibit late-term abortion, which the Roe decision itself indicated states could do. Further, many legal scholars who support legal abortion acknowledge that, as a matter of law, Roe was mostly judicial contrivance. 

But Democrats seem to think that they can win on this issue only by generating enough hysteria to prevent any honest discussion that recognizes distinctions. 


Chris Powell is a columnist for the Journal Inquirer, in Manchester, Conn.