Countless times on the campaign trail, President Biden declared that the 2020 Presidential election was more than a traditional election for the nation’s highest office — it was a battle for “the soul of America.”^[1] He intended that phrase as a call to action, imploring Americans to choose the politics of hope and inclusion over a politics of fear and division.^[2] Over the years, this phrase has been invoked by presidents and civil rights leaders at critical inflection points in the nation’s history including the Civil War and the Civil Rights Era.^[3] Even more often, the phrase has been used to reflect the country’s inability to reconcile its values of freedom and equality with its treatment of its Black inhabitants.^[4]

As the first 100 days of the Biden presidency start to wane, Americans find themselves at another decisive moment in our nation’s history. After a summer of protests for racial justice and in the midst of a global pandemic that has disproportionately killed Black Americans,^[5] is America finally primed to realize its promise that all men are created equal? If so, we should look to the failures of America’s Second Founding to inform our approach to racial equity today. This examination will demonstrate that any attempts by the Biden-Harris administration to fulfill its commitment to racial equity^[6] must incorporate economic policies to empower this country’s African American population.

Anyone from seasoned academics to school-age children is likely familiar with the story of America’s founding. Less prominent however is the country’s Second Founding,^[7] which occurred during the Reconstruction Era and attempted to remedy the failures of that first Founding. In particular, the Second Founding reckoned with how the First Founding paradoxically envisioned a democratic nation that espoused liberty and equality^[8] while simultaneously enslaving a significant portion of its populace. From the ashes of civil war, America found itself at a crossroads on how to rebuild as a country and as a society — one that would make good on its promise of equality and liberty for all by extending these basic democratic principles to their newly free Black population.^[9] However, much like the original, the Second Founding is generally regarded as a woeful failure despite its democratic pronouncements.^[10]

Crippled by regressive legislation and economic policies, Reconstruction ushered in a new era of economic and social subjugation for Black Americans,^[11] ultimately failing to deliver real justice for descendants of African slaves. Just like the first Founding, which laid the foundation for America’s forthcoming economic dominance by protecting the institution of slavery,^[12] the Second Founding can also be characterized by its insistence on maintaining white Americans’ social and economic dominance over newly freed Black citizens. Following the Civil War, Southern states passed Black Codes and vagrancy laws to recreate the conditions of slavery and maintain America’s constructed racial hierarchy.^[13] Together they constrained freedmen’s ability to own land and seek employment beyond their former masters’ plantation.^[14] Historically, vagrancy laws have been used to control society’s “undesirable” groups.^[15] In the Reconstruction Era, they reinforced antebellum social norms to prevent an exodus of the South’s primary source of revenue.^[16]

Unsurprisingly, the effects of these decisions are still being felt over a century later. Black communities have suffered from higher rates of infection from COVID-19 due to their impoverished economic position relative to White Americans.^[17] Decades of systemic racism bolstered by racist employment policies and housing laws have left Black Americans overrepresented in low-wage jobs and low-income, urban communities that are hotbeds for the novel coronavirus.^[18] The virus, once called the “great equalizer,”^[19] has instead re-exposed fractures in American society established at the Founding and reinforced by Black Codes, Jim Crow, segregation, and their progeny.^[20] As a result of this wretched history, Black Americans continue to dominate the lowest rungs of America’s socioeconomic ladder.^[21]

Although in theory the 13th, 14th, and 15th Amendments espoused to make Black Americans equal to their white counterparts, they were weakened by state laws, local policies, and landmark Supreme Court cases.^[22] President Andrew Johnson, a staunch opponent of Reconstruction, worked to limit the economic empowerment of Black Americans in the post-war era while shepherding federal policies that prioritized white Southerners.^[23] Most notably, Johnson vetoed the Freedmen’s Bureau Acts of 1865 and 1866, which sought to establish a federal bureau to provide food, land, and other means of subsistence to newly freed African Americans.^[24] In his veto address, Johnson urged the freedmen to become a “self-sustaining population” without government assistance.^[25] He argued the Founders never contemplated a system “founded for one class or color of our people more than another.”^[26] Of course, the Constitution both denied Black persons the right to sustain themselves and explicitly affirmed the racial inferiority of Black people through its protection of the institution of slavery.^[27] Though Congress eventually overrode Johnson’s veto to pass a more moderate version of the 1866 Act,^[28] Johnson’s persistent efforts against Reconstruction coupled with white terrorism permeating the South brought the Second Founding to premature close.^[29]

Over 150 years later, I’m calling for a Third Founding moment. American society is currently characterized by widespread civil unrest and the loss of life that surrounded the two previous Founding eras.^[30] If America is finally willing to make good on its promise of justice and equality for all, and a new segment of American society is truly inclined to support social justice for Black Americans, we must push for meaningful investments from the federal government in the Black community. Condemning the hostile treatment of Black Americans is but one step towards racial reconciliation in this country. To protest the social consequences of this country’s affair with white supremacy without addressing the economic arrangements that begot these conditions is reconstruction á la carte. If the Biden-Harris administration is truly committed to racial equity and combating systemic racism, their efforts must prioritize the economic empowerment of this country’s Black population. There can be no racial justice without concurrent economic justice for Black America.

^[1] Elizabeth Dias, Biden and Trump Say They’re Fighting for America’s ‘Soul.’ What Does That Mean?, The New York Times (updated Jan. 20, 2021), https://www.nytimes.com/2020/10/17/us/biden-trump-soul-nation-country.html.

^[2] See Transcript: Joe Biden’s DNC speech, CNN Politics (updated Aug. 21, 2020, 6:36 AM), https://www.cnn.com/2020/08/20/politics/biden-dnc-speech-transcript/index.html.

^[3] Dias, supra note 1.

^[4] Id.

^[5] Jacqueline Howard, Institutional racism contributes to Covid-19’s “double whammy” impact on the Black community, Fauci says, CNN Health (Dec.18, 2020, updated 8:08 AM), https://www.cnn.com/2020/06/23/health/coronavirus-pandemic-racism-fauci-bn/index.html (“African-Americans have suffered disproportionately from coronavirus disease. They’ve suffered in that their rate of infection is higher because of the nature of the economic status that many of them find themselves in where they’re outside working, being unable to physically separate,” [said] Fauci, the director of the National Institute of Allergy and Infectious Diseases.”).

^[6] The Biden-Harris Administration Immediate Priorities, The White House, (accessed Jan. 31, 2021), https://www.whitehouse.gov/priorities/.

^[7] Jeffrey Rosen and Tom Donnelly, America’s Unfinished Second Founding, The Atlantic (Oct. 19, 2015), https://www.theatlantic.com/politics/archive/2015/10/americas-unfinished-second-founding/411079/.

^[8] Declaration of Independence, (U.S. 1776).

^[9] Rosen and Donnelly, supra note 7.

^[10] Alexander Manevitz, The failures of Reconstruction have never been more evident — or relevant — than today, The Washington Post (Jun. 11, 2020, 6:00 AM), https://www.washingtonpost.com/outlook/2020/06/11/failures-reconstruction-have-never-been-more-evident-or-relevant-than-today/.

^[11] “Black Codes” Gale Encyclopedia of American Law, 3rd ed., edited by Donna Batten, 43-44. Vol. 2. Detroit, MI: Gale, 2010. Gale eBooks (accessed February 13, 2021). https://link.gale.com/apps/doc/CX1337700546/GVRL?u=gtown_law&sid=GVRL&xid=945533eb. (For the next several months [after the Civil War], southern states sought a way to restore for the white majority what the Civil War and the Thirteenth Amendment had tried to deny them: supremacy, control, and economic power over the fate of African Americans.”)

^[12] P.R. Lockhart, How slavery became America’s first big business, Vox Media (Aug.16, 2019, 9:00 AM), https://www.vox.com/identities/2019/8/16/20806069/slavery-economy-capitalism-violence-cotton-edward-baptist.

^[13] Gary Stewart, Black Codes and Broken Windows: The Legacy of Racial Hegemony in Anti-Gang Civil Injunctions, 107 YALE L.J. 2249, 2258-59 (1998).

^[14] Id. at 2259. Ralph Banks, et al, Racial Justice and Law, Cases and Materials, 32 (Foundation Press, 2016) (“Black Codes imposed travel and movement restrictions on former slaves, preecluded them from any employment other than as tenant farmers or laborers, punished vagrancy harshly, and limited the rights of the former slaves to own property.”)

^[15] Stewart, supra note 13 at 2258.

^[16] Id. at 2259.

^[17] Howard, supra note 5.

^[18] See Eugene Scott, 4 reasons coronavirus is hitting black communities so hard, The Washington Post (April 10, 2020, 3:10 PM), https://www.washingtonpost.com/politics/2020/04/10/4-reasons-coronavirus-is-hitting-black-communities-so-hard/.

^[19] Stephen A. Mein, COVID-19 and Health Disparities: the Reality of ‘the Great Equalizer’, J Gen Intern Med. Vol. 35(8) 2439-40 (2020).

^[20] Kilolo Kijakazi et al., Racial Inequities Will Grow Unless We Consciously Work to Eliminate Them, Urban Institute, (Jul. 1, 2020), https://www.urban.org/urban-wire/racial-inequities-will-grow-unless-we-consciously-work-eliminate-them.

^[21] See Disparities in Wealth by Race and Ethnicity in the 2019 Survey of Consumer Finances, Board of Governors for the Federal Reserve, (updated Sept. 28, 2020), https://www.federalreserve.gov/econres/notes/feds-notes/disparities-in-wealth-by-race-and-ethnicity-in-the-2019-survey-of-consumer-finances-20200928.htm.

^[22] Rosen and Donnelly, supra note 7 (“Political compromise, the Supreme Court, and Jim Crow […] silenced the promises of the Reconstruction Amendments to the Constitution”).

^[23] See Manevitz, supra note 10.

^[24] Freedmen’s Bureau Acts of 1865 and 1866, United State Senate, (accessed Feb. 1, 2021), https://www.senate.gov/artandhistory/history/common/generic/FreedmensBureau.htm; see also Veto Message on Freedmen and Refugee Relief Bureau Legislation, Univ. of Vir. Miller Center, (Feb. 19, 1866), https://millercenter.org/the-presidency/presidential-speeches/february-19-1866-veto-message-freedmen-and-refugee-relief.

^[25] Id.

^[26] Id.

^[27] U.S. Cont. art. I, § II, cl. 3, amended by U.S. Const. amend. XIV;  U.S. Cont. art. I, § IX, cl. I amended by U.S. Cont. amend XII, § I; U.S. Cont art. IV, § II, cl. III amended by U.S. Cont. amend XII.

^[28] Freedmen’s Bureau Acts of 1865 and 1866, United State Senate, (accessed Feb. 1, 2021), https://www.senate.gov/artandhistory/history/common/generic/FreedmensBureau.htm.

^[29] Ta-Nehisi Coates, The Case for Reparations, The Atlantic, (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/.

^[30] See Manevitz, supra note 10.