Commentary: Why March 2 is the true birthday of modern America

March 2 is rarely celebrated as our America’s birthday, but it should be.

It was the day in 1867 when Congress overruled President Andrew Johnson’s veto of the first Reconstruction Act that created a new republic by wiping out the governments of the Confederate States and placing them under military control.

The Revolution of 1776 certainly created a new nation. But the America of 1776 or 1787 was what historians called a slave-owning republic, with a constitution that protected slavery and denied blacks national citizenship. Black Americans, women, and other groups had no protections against state discrimination, and even white men had almost no federal constitutional rights to protect them from their state governments.

The 13th^St 14th Amendment to the Constitution prohibiting slavery^St Amendment that gave citizenship to formerly enslaved people and guaranteed equal protection of the law to all, and the 15th^St The amendment banning racial discrimination in elections formed what I call the Constitution for Reconstruction—a constitution very different from the 1787 constitution.

The 14th^St The amendment was drafted in 1866 during the post-Civil War Reconstruction period. Slavery, at least nominally, was over, but Americans disagreed on the new order. Former Confederate states attempted to restore white supremacy with laws called Black Codes, which denied many rights to the formerly enslaved people.

Congress overruled these discriminatory laws by passing civil rights legislation that gave black Americans citizenship and other rights. However, Congress feared that the courts would invalidate these laws or that subsequent Congresses with representatives from the South could overturn them.

The 14th Amendment was designed to put these issues beyond the reach of pro-slavery judges or mainstream politics. It would define the terms of a new American social contract based on inclusion and equality.

The Reconstruction Congress sent this proposed amendment to the states for ratification, as required by Article V of the Constitution. It called on America to commit to this new order — perhaps most fundamentally, to accept black Americans as citizens.

America said no.
Tennessee ratified the 14th^St Change in 1866, but other than that all former Confederate states refused. And not just the former Confederates. Delaware and Maryland opposed the change in early 1867; that’s Kentucky. New Jersey and Ohio attempted to withdraw their ratifications in 1868.

By the end of 1866, it was clear that the 14th Amendment could not be ratified by three-quarters of the states, as required by Article V. The attempt to change America through the existing legal framework failed.

And so it had to be different.

In February 1867, Congress passed the first of four Reconstruction Acts. This first law declared that no legitimate governments existed in 10 former Confederate states. (Tennessee, March 14^St Change, was spared.) It abolished these state governments and placed them under military control. On March 2, Congress overruled Johnson’s veto of the bill to make it law.

Then Congress directed the people of the South to hold constitutional assemblies and form new states. Congress decided who would be citizens – including those who had previously been enslaved. The Congress also decided who would hold political power – the formerly enslaved people were eligible to attend the Congresses, ex-Confederates were not. The four Reconstruction Acts were a revolution. They destroyed the old Confederate states that opposed the 14th Amendment and created new ones that would accept it.

That may sound like a bold claim. But Florida, Georgia and Alabama, suing the Secretary of War, claimed just that: The Reconstruction Acts were a destruction of the existing state and the creation of a new one not by consent but by force. Similarly, the Democratic Party platform of 1868 condemned the Reconstruction Acts as unconstitutional and revolutionary.

The Supreme Court declined to hear the States’ case, and history has long rejected the Democrats’ positions of 1868. Since then, we’ve suppressed the radicality of what happened during Reconstruction because we want to tell a story of continuity as 1787 America gradually evolves toward a more just union. But that didn’t happen, and it will be a sign of our maturity as a nation when we can face the truth about our origins.

In 1776, revolutionaries destroyed their old colonial governments. New constitutions created new states. In 1787, these new states ratified a new federal constitution and formed a new nation. In 1867, revolutionaries destroyed existing governments, and new constitutions again created new states. These new states ratified a new constitution that reformed America. The Reconstruction Act of March 2 started this process and we owe it more than the Declaration of 1776.

Kermit Roosevelt III is a law professor at the Carey Law School of the University of Pennsylvania and the author of The Nation that Never Was: Reconstructing America’s Story.