Juneteenth was America's Fourth Republic- and the One that Birthed America's Democracy

America is not an "idea" or a unitary constitutional order dating to 1787 but a succession of constitutional orders

France refers to its present constitutional order as its “Fifth Republic” with no pretense that it is the same nation as the one birthed in the French Revolution. Britain doesn’t even have a written constitution, but no one thinks its current government is justified by the system dominated by a powerful king and inherited the House of Lords of the 18th century. Most nations of the world recognize radical disjunctures between their current government and those of earlier centuries.

Almost uniquely in the world, there are those in the US (in fact, a majority on our Supreme Court) who claim that the current constitutional order is largely the same as that of the 18th, that despite a bloody civil war, radical changes in its Constitution, even more radical changes in how that Constitution is understood, and fundamental changes in who gets to vote.

Whatever the contested debates on the specifics of the 1619 Project, its most salient point is that the US as a nation did not emerge like Athena whole and unsullied from a past in 1776 but carries in its DNA the decisions and history of our colonial period, most fundamentally the decision to import slaves and the legal codes of white supremacy that grew up around the institution. Our current constitutional order has little to do with that of 1789 and making that understanding more general in the public in key to challenging rightwing attempts to undermine democratically-adopted decisions now in the name of “original intent” from that era.

If the colonial period is the First “Republic” of our nation’s history, the Articles of Confederation was the Second Republic that governed the new country through the Revolution until George Washington was elected under the new Constitution. That Confederation was short-lived but the ideas of “state sovereignty” and states rights would continue to hark back to this Second Republic, so much so that when the slave states seceded in 1861, they called their new country the “Confederacy” as a return to the values of that lost second republic.

The Third Republic of America, from 1789 to the Birth of a New Nation when the North won the Civil War, can as well be called the Slave Constitution since the issue would shape all politics and dominate the legal relations of the states for the whole era - a point I went into far more detail last year in my Juneteenth post.

Juneteenth, celebrating the final word of the end of the Slave Constitution reaching the last slaves in Texas, marks the foundation of the Fourth Republic of our Nation, the one where the 13th, 14th, and 15th Amendments fundamentally reshaped the nation into a new constitutional order. As the southern states were readmitted only under conditions set by the US Congress, the new Republic’s principle was one of firm subordination of state authority to national power. Enforcement Acts would send troops to the South to enforce new civil rights laws, creating voting rights for all (male) Americans, a Freedmen’s Bureau would establish federally-run schools in the South, and other laws would ban segregation and build public works throughout the nation, most notably an Intercontinental Railroad. This is the nation most liberals recognize as our modern nation's core source and model.

And it would be erased and replaced by a combination of elite legal decisions by a racist Supreme Court backed by white terrorism in the South, terrorism defended by the Supreme Court which freed its ringleaders and struck down the federal laws enacted to stop that terrorism. That terrorism would overthrow the new Reconstruction governments and racist elites would then use that terrorism to control the Electoral College in 1876 to end Reconstruction nationally and usher in the Fifth Republic of our country. This Fifth Republic would be the Gilded Age of Jim Crow legal structures that also severely limited federal power to enact measures like a federal minimum wage or, later, threatened to block most of the New Deal under what was also called the Lochner era.

In the battle over the New Deal, President Franklin D. Roosevelt threatened to pack the Court and while that effort failed, several conservative members of the Court engaged in what is known as the “switch in time to save nine” (Justices that is) to support the New Deal measures. With new FDR appointments to the Court, the Fifth Republic restrictions on federal power, created by judicial fiat, would be erased by judicial fiat - a constitutional revolution birthing the Sixth Republic era that appeared in no constitutional amendment but was as fundamental as the transitions in 1789, 1865 and 1876.

Whether the Civil Rights and Voting Rights Acts of 1964 and 1965 - accompanied by other Warren Court legal decisions strengthening individual rights - constitute a new constitutional order can be more debated. Arguably, the values of that new order were embedded in that of the Sixth Republic of the New Deal, where the House would pass civil rights legislation as early as the 1940s. The Senate filibuster delayed enactment - as it does all progressive legislation - but civil rights was seen by many as part of the new era emerging in the post-Gilded Age New Deal era. But what’s also impossible to ignore is that who gets to vote fundamentally reshapes political options as much as legal doctrine, so the Voting Rights Act is reasonably seen as a radical shift in our constitutional order.

But whether we are still in the New Deal Sixth Republic or a Civil Rights Era Seventh, what is inarguable is both are facing replacement by a new right-wing Republic of legal constitutionalism. Call it the revenge of the Slave Constitution, but two elections by losers of the popular vote, white terrorism across the country, the rollback of the Voting Rights Act, and the unleashing of corporate money by the Supreme Court - all have contributed to a radical new Court majority remaking our nation by judicial fiat one decision at a time.

That radical right-wing majority on the Court wants to pretend they are just restoring the original 1789 Constitution but they do so through an unhistorical erasure of the fact we are NOT an unbroken singular legal nation. We have passed through many constitutional orders and there is no reason to privilege one (1789) over the current democratic decisions of our elected leaders.

Juneteenth and the New Birth of Freedom Constitutional Amendments represented many things, but most fundamentally, they represented the assertion of democratic power over unelected elite power, particularly the power of the court and its historic support for slave owners up to that point.

Notably, the 13th, 14th, and 15th Amendments all share one line in common, a section at the end of each which reads:

Congress shall have power to enforce this article by appropriate legislation.

This is the assertion of federal democratic power, that it is the job of elected representatives in Congress, NOT the states, and not the judiciary which betrayed the nation in the Dred Scott decision (and would fail it in the future in the Cruickshank, Plessy and Shelby County decisions), to hold plenary power.

Fundamentally, the new Court is trying to erase that understanding of federal power and rollback the Voting Rights Act and much of the New Deal regulatory authority of the federal government.

Celebrating Juneteenth and the birth of the Fourth Republic of our nation is one rhetorical way to mark the disjunction in our constitutional timekeeping that makes such a move illegitimate. The less they can claim an unbroken chain of constitutional authority to 1789, the more hollow their invocations of “original intent” will seem.

The Supreme Court has no taxing power, no troops - it’s only weapon is its legitimacy. Undermining that is the first step to more concrete action such as expanding the court to restore Justices that will respect the democratic authority of the federal government won first in the Fourth Republic after the Civil War and restored in the Sixth Repubic of the New Deal.