Reasons for Hope: Kentanji Brown Jackson, Civil War Era History, and the Supreme Court’s Struggle over the Second Founding
You didn’t expect this. Part of a majority segment of a U.S. Supreme Court decision—that is, Justice Ketanji Brown Jackson’s concurrence in the birthright citizenship case—builds upon and amplifies the writings of historians Eric Foner, Kate Masur, Ira Berlin, Isabel Wilkerson, Kenneth Stampp, David Blight, and Manisha Sinha. “The architects of the Second Founding,” Jackson writes, did not think or pretend that race didn’t matter.” [1]
She deftly challenges the claims of dissenting Justices Clarence Thomas and Samuel Alito, who pretend that a “color-blind” Constitution provides no sanction for those who might try to uproot “racial caste.” Following Foner. Jackson celebrates the “paradigm shift” encompassed in the Fourteenth Amendment that repudiated “the notion that there is a superior, dominant, ruling class of citizens.” (She quoted the latter phrase from Justice John Marshall Harlan’s spirited dissent in the infamous Plessy case.)
If 2029 brings about a change in national political leadership, it may be hoped that Jackson’s concurrence points towards time when we historians may expect to see our work shaping new outlooks in the corridors of power. Jackson specifically saluted “trained historians” for helping her to see that “our Constitution stands firmly against caste and subordination.”
Justice Jackson’s concurrence appeared directly after Justice John Roberts’ majority opinion, which offered a lengthy exegesis on the common law. A PDF version of the concurrence is also included below.
Ketanji Brown Jackson Concurrence[1] Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (Norton, 2019); Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction (Norton, 2021); Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum South (New Press, 1974); Isabel Wilkerson, Caste: The Origins of Our Discontents (Penguin, 2020); Kenneth Stampp, The Era of Reconstruction, 1865–1877 (Knopf, 1965); David Blight, Frederick Douglass: Prophet of Freedom (Simon and Schuster, 2018); Manisha Sinha, The Rise and Fall of the Second American Republic: Reconstruction, 1860–1920 (Norton, 2024).
Daniel W. Crofts
Daniel W. Crofts, Professor Emeritus of History at The College of New Jersey, has written extensively about the North-South political crisis that culminated in secession and Civil War. He was awarded the University of Virginia's Bobbie and John Nau Book Prize for his 2016 volume, Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union (University of North Carolina Press).
