The Second Founding and the First Amendment
51 Pages Posted: 22 Jul 2020 Last revised: 16 Nov 2021
Date Written: July 15, 2020
Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution of Enslavement would be modified as necessary in order to give rise to a “new birth of freedom.” Contemporary constitutional doctrine, however, has rarely grappled with the question of whether and to what extent the Second Founding’s Framers and general public might have had a different or more nuanced understanding from their First Founding counterparts of prior constitutional provisions.
The Supreme Court’s approach to First Amendment interpretation largely ignores the Second Founding. The Court’s cases generally view the colonial Founding era as the sole source of evidence for ascertaining the original intent and public understanding of the Constitution’s guarantee of freedom of speech. This Article, by contrast, contends that the intent and understandings of the Second Founding provide an additional and under-explored source of constitutional meaning and therefore examines freedom of speech through the lens of slavery, abolition, and Reconstruction.
This Article breaks new ground in legal scholarship by extensively reviewing slave narratives that illuminate the experiences and perspectives of enslaved persons regarding freedom of speech. This Article contends that by virtue of the Second Founding, enslaved persons’ views and experiences regarding freedom of speech should directly inform the meaning of the First Amendment. Accordingly, this Article makes a novel contribution to the literature regarding the Second Founding by centering enslaved persons’ voices as constitutional actors whose views on freedom of speech matter.
Keywords: Thirteenth Amendment, Fourteenth Amendment, Fifteenth Amendment, Second Founding, retaliation, slavery, freedom of speech, free speech, First Amendment, civil rights, equality, discrimination, racial justice, abolitionists, public meaning, Reconstruction, originalism, badges and incidents
JEL Classification: K00, K19, K39
Suggested Citation: Suggested Citation