It’s time for a third Reconstruction

The first Reconstruction Era after the Civil War promised full and equal citizenship for black people in our society. The understatement of the century is that we are still working on fulfilling that promise.

The outpouring of protest against police brutality and in favor of racial equality in response to the tragic death of George Floyd is a turning point. Thousands of protestors have thronged the streets in our nation’s cities, suburbs and even small towns in all 50 states. Polls show that 74 percent of Americans support the protests. Sixty-nine percent of Americans say the killing of George Floyd reflects broader concerns about how police treat black Americans. This support crosses both racial and partisan lines, a rare moment of consensus in our polarized and divided nation. It is time for a Third Reconstruction to address racial inequality and injustice in our nation.

Throughout our history, advances in human rights have only come about in response to the type of mass political action that we are seeing today. This is particularly true for the advances in racial equality that occurred during our first Reconstruction at the end of the Civil War and the 1960s civil rights movement, which historians refer to as the second Reconstruction. Unfortunately, success has been followed by retrenchment and the need for more political activism.

The first Reconstruction occurred when we amended the Constitution to abolish slavery and establish voting rights and the right to equal protection under the law. The abolition of slavery was the culmination of years of political struggle by fugitive slaves, free blacks and other anti-slavery activists. Those activists developed rights theories that influenced the Reconstruction Congress. That Congress also enacted civil rights laws, authorizing civil rights suits against state officials who violate constitutional rights. 

Unfortunately, the promise of the first Reconstruction lay unfulfilled for almost a century. In the segregated Jim Crow South, former slaves and their descendants were treated as second-class citizens. In the rest of the country, black people faced race discrimination, which denied them economic opportunities and human dignity. Throughout the country, when black people tried to assert their rights, they often encountered not support but violence and intimidation from law enforcement officials. 

The second Reconstruction began in the 1950s when a new coalition of activists worked together to end racial segregation and racialized violence, establish the right to vote and open up economic opportunities for people of color. The activism of Martin Luther King Jr., John Lewis, Ella Baker and others succeeded in convincing the majority of Americans that it was time for a change. In the 1960s, Congress enacted major civil rights laws that barred race discrimination and established meaningful voting rights. Federal courts also participated in the Second Reconstruction, providing relief to victims of police violence who brought civil rights suits against state officials.

Unfortunately, the promise of the Second Reconstruction civil rights era is also unfulfilled. Despite the end of state-mandated segregation, black people still encounter race discrimination in almost every aspect of their lives and lag behind whites in every economic indicator. Mass incarceration and police brutality plague communities of color and have triggered the latest demonstrations. Our first black president was succeeded by a man who many believe relies on racism to divide the American people. Federal courts have erected barriers to civil rights suits, making it virtually impossible to hold abusive police officers legally accountable. 

In the past ten years, we have witnessed too many tragic deaths of African Americans at the hands of the police, inspiring a new grass roots “black lives matter” movement. This year, the COVID-19 crisis has exposed the racial inequality in our society. Blacks are disproportionately affected by the virus for many reasons, including the fact that they are more likely to be poor, with less access to quality health care, and because they are more likely to be working in underpaid “essential” jobs. The death of George Floyd is the spark that gave rise to this conflagration, but the heightened awareness of racial inequality added fuel to the fire.  

The success of these grass roots protests has inspired Americans, and it looks like they are starting to achieve results. Once again, members of Congress have introduced a civil rights act, which would revitalize Reconstruction-era civil rights laws and reform police practices throughout the nation. If it passes, this act would be a major step to address racial injustice in our society. But alone it is not enough. 

The Third Reconstruction must address the economic and social roots of racial inequality in our society that fostered this discontent. Accomplishing this will require a sustained political movement, focusing not only on federal elections this November but also on electing responsive local and state officials. It will require enforcing voting rights and combatting voter intimidation.

This week in Bostock v. Clayton County, the U.S. Supreme Court held that Title VII of the 1964 Civil Rights Act prohibits employers from discriminating on the basis of sexual orientation or sexual identity. Bostock is a huge victory for equality and human rights, and will benefit all members of the LGBTQ community, including blacks. Unfortunately, the court has not extended the same support for racial equality, restricting affirmative action, striking down a crucial measure of the 1965 Voting Rights Act and strengthening official immunity from civil rights suits.

The Third Reconstruction will also require appointing federal judges who enforce civil rights laws instead of erecting barriers to civil rights suits. Unfortunately, Senate Republicans are pushing forward conservative judges who will resist civil rights suits.  Stopping those nominations from being approved should be one of the first priorities of proponents of the Third Reconstruction.

Rebecca E. Zietlow is the Charles W. Fornoff Professor of Law and Values at The University of Toledo College of Law. Her scholarly interest is in the study of the Reconstruction Era, including the meaning and history of the Thirteenth and Fourteenth Amendments. She is the author of, “Enforcing Equality: Congress, the Constitution and the Protection of Individual Rights.”