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Rulemaking’s Second Founding

This Essay takes its title from Professor Eric Foner’s 2019 Pulitzer Prize winning book The Second Founding.Foner’s book traces the development and adoption of the thirteenth, fourteenth, and fifteenth Amendments and the ensuing Reconstruction experience that endured until the election of 1876, a brief period that seemed to permit something approaching equality (at least for men) in the South. In that sense, these political developments could have amounted to a “second founding” to build on and move beyond the Revolutionary War and original adoption of the Constitution. As we all know too well today, that promise was extinguished around 1877, and during the rest of the 19th century the nation instead saw the rise of Jim Crow laws, paramilitary domestic terrorism managed by groups like the Ku Klux Klan, and stasis for at least three quarters of a century in racial justice. Indeed, as recent events in this country show, that stasis has not been left entirely behind.