William M. Carter, Jr.,University of Pittsburgh School of Law, has published The Second Founding and the First Amendment in the Texas Law Review. Form the introduction:
The nation's founding compromise with slavery resulted in a Constitution that proclaimed universal liberty in theory while protecting human enslavement in practice. After centuries of struggle and a cataclysmic Civil War, a new constitutional order emerged: A Second Founding of the nation that sought to dismantle the legacies of slavery and turn American law away from nearly two hundred fifty years of race-based enslavement and discrimination. In order to remedy the First Founding's defects, the Second Founding amended the Constitution to prohibit slavery and empower Congress to remediate slavery's lingering effects; to recognize Black citizenship and protect rights to due process and equal protection for all; and to enfranchise African-Americans on a national basis.–Dan Ernst
These specific constitutional changes, while monumental, do not fully capture the scope of the Second Founding's constitutional moment as envisioned by its Framers. The post-Civil War Constitution also addressed the systemic legacy of the system of enslavement upon our constitutional order. No more would the Constitution, in the words of Senator Charles Sumner, be interpreted as it had been previously: that is, "in every clause and line and word, [in favor of] Human Slavery." Rather, there would be a new mandate to constitutional interpretation, whereby the Constitution would be "interpreted uniformly and thoroughly for human rights.”
Notwithstanding the clear break from the prior constitutional order that the Civil War Era represented, the Supreme Court's cases interpreting pre-Civil War constitutional provisions generally treat the Second Founding as merely a continuation of the First Founding. Nowhere is that truer than in the Court's cases interpreting the First Amendment's guarantee of freedom of speech. This Article takes the Second Founding seriously by examining the many denials of free speech inflicted upon enslaved persons and their allies during the pre-Civil War Era; the expressed views of the post-Civil War Framers regarding freedom of speech and the promise of full and equal protection of Black and antiracist speech henceforth; and, most importantly, the views of enslaved persons regarding freedom of speech.
