The Reconstruction Amendments’ Canonical Texts

Guest Blogger

For the Symposium on Kurt Lash, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.).

Darrell A.H. Miller

            Constitutional history is uniquely susceptible to the twin vices of all works of history: hagiography and Whiggery.  There are three inter-related reasons for this:  First, American constitutional culture reflects the relentless optimism that the constitution, like the common law, will eventually “work itself pure.”  Second, constitutional law is inescapably normative and consequential—what someone said yesterday decides who goes to jail today—so it matters who that someone is.  Third, constitutional lawyers have yet to emerge fully from the long shadow of Ed Meese’s jurisprudence of “original intentions.”  Despite sophisticated theoretical and technical tools developed in the last half-century, jurists are still parsing Hamilton’s Federalist to determine the scope of “the judicial power” and citing random letters from Thomas Jefferson to his nephew to construe the term “bear arms.”  (Although that may be changing.)      

            Given the hazards, it’s remarkable that Kurt Lash’s masterful two volume set, The Reconstruction Amendments: The Essential Documents (Chicago University Press 2021), mostly avoids these twin perils of constitutional history.  I say mostly because the task Lash sets himself (revealed in the book’s subtitle) is nothing short of defining the canonical works of Thirteenth, Fourteenth, and Fifteenth Amendment interpretation. That project necessarily implies elevating some figures and condemning others; choosing texts that proved prescient and those that appear benighted.  But, to his credit, Lash’s normative commitments are sotto voce – the product of editing and not editorializing.  Ultimately, Lash has produced a single, critical resource for understanding a profound moment in American constitution making—a resource that is long, long overdue.  How scholars, lawyers, judges and the public use this resource depends less on the merits of Lash’s work and more on how and when—if ever—the Reconstruction Amendments are integrated into the American constitutional imagination.    

            Initially, I was skeptical.  Lash starts his compilation with the greatest hits of any conventional founding-era edited volume:   the Declaration of Independence, the Federalist, the Kentucky and Virginia Resolutions, McCulloch v. Maryland.   At first, it all seems to follow a familiar and disappointing pattern where every constitutional argument—even ones about Reconstruction—start and end with the thoughts of Hamilton, Madison and Jefferson.   But then, enter William Yates and his 1838 Treatise Rights of Colored Men – and we understand this compilation is not about seeing emancipation through the eyes of Jefferson, but making Reconstruction contemporaries as indispensable to constitutional meaning as any Founding Father.

            Indeed, the effect of Lash’s selection and arrangement becomes almost dramatic, as figures of Reconstruction history—Frederick Douglass, Lyman Trumbull, John Bingham—alternately embrace or ridicule the ideas of previous entries.   Douglass’s aggressively textualist anti-slavery reading of the Constitution is riveting when read just a few pages after Roger Taney’s extra-textual Dred Scott decision.  The urgency of Trumbull’s speech on the emancipation amendment becomes apparent when the Confederate Constitution’s express protection of “negro slavery” is still ringing in your ears.  Sometimes the effect is illuminating, even comical.   John C. Calhoun keeps turning up like a bad penny.  The genteel posturing of his early writings becoming shriller and more explicitly pro-slavery in later appearances.

            Most rewarding is Lash’s decision to include newspaper records, pamphleteers, and lesser-known commentators in this collection of essential documents. The cult of “great men” that still besets Founding era history (most notably in legal briefs and public discourse), sets a trap for Reconstruction historians who may be tempted to substitute one great man for another.   So instead of channeling the ghost of Madison, you wind up channeling Bingham.  

But Lash avoids that snare.  That’s not to say that there’s no political elites in this collection.   Certainly, there’s plenty of records from the Congressional Globe, party platforms, speeches and debates of the leading figures of the time.  But these documents are leavened with the social history of common folk.  There’s the incendiary 1829 tract of David Walker, declaring, like an abolitionist Patrick Henry: “[H]ad I not rather die . . . than to be a slave to any tyrant[?]”  There’s the lurid recounting of the 1866 New Orleans massacre of Freedmen and their supporters in the Philadelphia Evening Telegraph, described as an affront to  “[t]he most sacred of American rights  . . . of the people to assemble and consult together.”  Nor does Lash flinch from including those documents that expose ruptures among allies.  Elizabeth Cady Stanton denounces the Fifteenth Amendment for elevating the interests of “ignorant natives and foreigners” over those of women a few entries ahead of Douglass’s letter cheering the same Amendment.  

Lash has produced a book that every constitutional scholar and historian needs to own.  If anything, I’m frustrated that it took this long.  A book like The Reconstruction Amendments should have been published fifty years ago.  Prior works, as Lash notes in his introduction, are uneven and sometimes unreliable.  Alfred Avins published The Reconstruction Amendments’ Debates: The Legislative History and Contemporary Debates in Congress on the 13th, 14th, and 15th Amendment in 1967.  But that effort was marred by Avins’ pro-segregation apologetics and its publication under the auspices of the anti-civil rights Virginia Commission on Constitutional Government.   Phillip Foner and George Walker published a two-volume set of the Proceedings of the Black National and State Conventions in 1980, but those documents are indifferently edited and the book has become difficult to find. 

Lash ascribes the lack of a single, curated set of Reconstruction Amendment sources, in part, to the fact that there’s so much material.   As he remarks in the introduction, the Reconstruction Amendment debates didn’t occur secretly behind dark curtains in a room in Philadelphia.  They happened on the floors of legislative chambers, and in the newspapers, campaign halls, and meeting rooms of the nation. Reconstruction history is public history. 

And therein lies the long-term challenge to Lash’s project.  For as much as it’s a marvelous achievement, and as much it succeeds in being ecumenical, it’s a compilation of a certain kind of constitutional history, for a certain type of constitutional law.  I predict that in the next few years, some jurist will cite Lash’s book for a constitutional proposition (the meaning of “Privileges or Immunities” seems a good guess) and the next question will be—“Why these sources?”  Already, constitutional scholars are using big data techniques to mine linguistic databases to assess constitutional meaning.  Judges are starting to pay attention too.  

Similar techniques someday could apply to social history.  Technological challenges and methodological conservatism have thus far prevented any comprehensive database of social history similar to what Lash has curated here.   Those impediments might not last.  Federal constitutional law fifty years from now could look similar to what Michael Gilbert suggested about ballot initiative interpretation – aggregate and code huge troves of data, including pamphlets, letters, emails, polling, and public statements and assess the understanding of the median ratifier.   There’s no heroes or villains in such a history, no high or low culture – only data.  If that happens (and there’s no guarantee it will) then the voices that Lash surfaces in his book become just a few more coded inputs in a vast, impersonal digital expanse.

Darrell A.H. Miller is the Melvin G. Shimm Professor of Law at Duke Law School.  You can reach him at dmiller@law.duke.edu.