4 - Rights and Reconstruction: syntheses and shell games

Summary

American rights discourse in the middle of the nineteenth century was both continuous and discontinuous with the rights discourse of the Founding. In some ways, the great transformations of American rights that emerged after the Civil War were fulfillments or extensions of Founding-era principles. Those who favored emancipation and equality found it easy to associate their visions with the Declaration of Independence and the ethos that went with it. At the same time, the changes in American conceptions of rights during the nineteenth century were not simply products of an inherited theory. Rights discourse in the nineteenth century was heavily conditioned by reactions against specific adversities that Americans faced during that time, just as Founding rights discourse had been influenced by reactions against adversities of that time. Much as their eighteenth-century predecessors had done, nineteenth-century Americans used rights language to prioritize and protect specific entitlements, liberties, powers, and immunities that they believed to be under threat. Part of the reconstruction of American conceptions of rights was the attempt to synthesize rights born of the concrete negations of different experiences at different times into a coherent whole.

There were many such attempts; the synthesis that emerged was not the only way in which Americans tried to fuse the legacies of Founding rights discourse with the crises of the nineteenth century. Before the Civil War, the relationships between the rights of the Founding and critical issues like slavery, free labor, property, and federalism were deeply contested.