The Mark Graber Problem

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

David S. Schwartz

Mark Graber has made a brilliant career of peering behind the vaporous curtain of U.S. constitutional mythology. Over many years, Graber has zeroed in on those episodes in which (to borrow Reva Seigel’s eloquent conceptual distinction) “constitutional memory” stands in as a misleading or false substitute for “constitutional history.”[1] Thus, for example, Graber showed, among his many other myth-busting insights, that Marbury v. Madison did not, and could not have, “created” or “established” judicial review[2]; and that that the Dred Scott case was not the product of illegitimate judicial behavior or method, but rather a representation of the racial constitutional politics of its time.[3] Graber’s truly impressive body of work as a whole also produces a meta-myth-busting lesson: that constitutional law does not exist independently from constitutional politics and, indeed, inevitably bends toward it. We cannot understand our constitutional law without understanding our constitutional politics, and given our constitutional order’s commitment to a substantial degree of continuity with the past, knowing our constitutional law requires knowing the history of our constitutional politics. In addition to learning this meta-lesson from Graber, I’ve learned an immense amount of constitutional history from Graber’s scholarship. 

In Punish Treason, Reward Loyalty, we now have Graber’s first volume of what promises to be a magisterial, three-volume history of the framing and ratification of the Fourteenth Amendment. Because Graber is professionally, and perhaps even psychologically, uninterested in historical work that merely adds detail to what we already believe, Punish Treason is a work of revisionism. In brief, Punish Treason argues that the framers of the Fourteenth Amendment—the 39^th Congress—were motivated primarily to prevent the restoration of rebel rule in the reconstructed states of the newly defunct Confederacy and to ensure payment of the Union’s financial obligations to northern creditors and war veterans. Constitutionalizing racial equality was a distant second consideration, and indeed perhaps largely an epiphenomenon of those primary concerns. Thus, to the framers, it was sections 2, 3, and 4 of the Fourteenth Amendment, that were the most important. The goals of punishing treason and rewarding loyalty were to be attained in two primary ways. Sections 2 and 3 would constitutionalize the conditions for political control by loyal Republicans, by excluding adult black males denied the right to vote in their states from the basis of representation in the House of Representatives and Electoral College (section 2); and by disabling rebels from eligibility for federal or state office if they had violated their prior oaths to support the Constitution (section 3)—a disability that would functionally extend to any Confederate who had held a federal or state office or served in the federal army prior to secession. Section 4 punished treason and dented the power of secessionist elites by repudiating Confederate war debt and banning its repayment, as well as prohibiting compensation for the emancipation of slaves; while at the same time guaranteeing repayment of public debt to Union creditors and constitutionalizing existing statutory obligations to pay bounties and pensions to Union war veterans. As Graber painstakingly demonstrates through an exhaustive canvasing and categorizing of thematic content in the congressional debates over the Fourteenth Amendment, it was these provisions that took up the lion’s share of attention in Congress. Flipping the conventional script, Graber suggests that section 1, which has utterly dominated the attention of courts and commentators in the ensuing years, was something of an afterthought. He suggests it was little more than the pet project of John Bingham and perhaps a few others.

The evidence Graber has marshaled to demonstrate the predominance of congressional concern over the issues underlying sections 2, 3, and 4, and the relative lack of concern about section 1, is overwhelming. Yet the argument feels incomplete at this stage. The substantial loose end is this: If the rights of black citizenship, privileges and immunities, due process, and equal protection, were indeed so relatively unimportant to the framers of the Fourteenth Amendment, why did these provisions get pride of place in section 1? Why was the amendment drafted so that the “afterthought” comes first? Presumably, Graber will answer this question in volume two, but I suspect that much of the criticism that Punish Treason garners going forward—revisionist works are always heavily criticized, and Graber’s personally thick skin is thus a crucial professional asset—will be some variant of this question.

Although this question struck me with some force, I assume Graber will have an explanation that sustains his thesis. To me, the bigger question about Punish Treason and the rest of the forthcoming trilogy is: what do we do with this new knowledge? This brings me to the title of this essay. The “Mark Graber Problem” is essentially this: When a largely salutary constitutional consensus has been built on a myth, what do we do when that myth is busted?

To put this question into relief, we need a little historiography. Graber is a leading scholar in a recent wave of Reconstruction-era historiography that has usefully been labelled “neo-Garrisonian,” after the abolitionist William Lloyd Garrison, who famously argued in the antebellum era that the Constitution was a pro-slavery “covenant with death” and “agreement with hell.” By “neo-Garrisonians,” I refer to those historians whose historical work unblinkingly examines the racist past of the United States. An archetypal statement of neo-Garrisonian views of the Constitution of 1787 is the statement by legal historian Gregory Ablavsky, that “constitutional law’s subsequent nationalism, racism, and imperialism were all present at [its] creation.”[4] Neo-Garrisonian scholarship offers a partial corrective to some of the enthusiasms that accompanied the important, racially progressive second-wave scholarship on Reconstruction launched in the 1960s and 1970s. That second-wave scholarship, led by such luminaries as C. Vann Woodward, Eric Foner, and others, refuted the racist Dunning School consensus of the first half of the twentieth century, which had derided Reconstruction on the view the freed slaves were incapable of political participation.

One element of that revisionist scholarship, which is now part of an established consensus, held that Dred Scott was “wrong from the day it was decided.” Yet prior to the 1960s, as Jamal Greene has shown, Dred Scott did not begin to occupy a position in a constitutional law anti-canon.[5] The publication in 1978 of Don Fehrenbacher’s highly influential book, The Dred Scott Case, cemented a new conventional wisdom that Chief Justice Roger Taney’s opinion was an “extraordinary cumulation of error, inconsistency, and misrepresentation” and “a gross perversion of the facts.”[6] This understanding of Dred Scott became an article of faith with second-wave historians.[7]

Starting in the mid-1990s, however, Graber published two important articles and a book that dismantled the conventional view that Dred Scott represented egregious judicial error. Taney, Graber convincingly showed, did not plainly distort constitutional language or commit “infidelity” to to any prevailing constitutional norm at the time. Moreover, as Graber concluded, “No prominent theory could have promised perfectly just outcomes during the 1850s…. Dred Scott is an evil decision because slavery and white supremacy are evil practices, and not because some flaw existed in the interpretive modalities adopted by the Taney Court.” [8]

Graber’s work may well have launched the neo-Garrisonian movement; and his analysis of Dred Scott is certainly on its way to becoming a new conventional wisdom. Indeed, as I have recently argued elsewhere, we may be witnessing something of a “neo-Garrisonian convergence” in which anti-racist legal historians and constitutional scholars are arriving at conclusions about a “white supremacist” Constitution of 1787 that public meaning originalists may be finding unavoidable. To be sure, few if any originalists are on record as conceding that the 1787 Constitution is a white supremacist document—a concession that might prove highly damaging to the fundamentally normative claim that that document’s “original meaning” binds us today. But one has to wonder why public meaning originalism has recently taken so marked a turn toward “Second Founding” studies. It is as if, in their heart of hearts, originalists are coming around to the belief that our true founding principles are those found in Section 1 of the Fourteenth Amendment.

Punish Treason is a logical progression for Graber from his work on Dred Scott. He applies the same unstinting realism with which he viewed the racial politics of 1857 to the racial politics of 1868. With but a few exceptions, he shows us, most members of the 39^th Congress were not racially progressive, even for their own time. The framing of the Fourteenth Amendment was far less “a new birth of freedom” than it was a constitutional-political gerrymander. Black people were accepted as citizens entitled to equal civil rights, not because the 39^th Congress wanted to constitutionalize the Declaration’s principle that “all men are created equal,” but because it viewed Black people as loyal to the Union, and specifically to the Republican party, which alone could forestall a return to the political dominance of the disloyal. This is a powerful instantiation of Derrick Bell’s “interest convergence” theory, which Graber explicitly embraces in Punish Treason.

If we take Punish Treason seriously, we must confront the apparent fact that “the Second Founding” idea, which treats racial equality as the prime-moving principle of the Reconstruction Amendments, is itself a myth. If that’s right, then what now? Founding myths, or “constitutional memory,” play an important role in constitutional interpretation. The “antisubordination” principle of Fourteenth Amendment interpretation, a principle to which I subscribe, is based on the idea that the guiding spirit of equal protection is to bring about substantive equality through the active removal of impediments born of racial and gender hierarchy, and the affirmative conferral of reparations and benefits to equalize conditions across races. It is exceedingly useful to claim that a spirit of substantive equality, as opposed to a vacuous formal equality, was the prime mover of the Fourteenth Amendment. The myth offers a “usable past” for present-day Fourteenth Amendment interpretation that it not conveyed by an animating spirit of guaranteeing that creditors are paid. So here is the Mark Graber problem: what happens when a myth is stripped away, leaving nothing in its place?

Graber will undoubtedly take a good deal of criticism for this too. The constitutional scholars among his readership will want to know the interpretive takeaway of Graber’s findings. But Graber is not required to provide one. Historical knowledge can be an end in itself, and correcting a false myth with a true historical account is a form of historical knowledge. No one can deny that Graber’s revisionist insight into the framing of the Fourteenth Amendment is book-worthy, irrespective of its use-value for constitutional interpretation. It is not the job of historians to make constitutional meaning, and in this work, Graber (officially, a political scientist) is functioning as an historian, albeit one with sophistication in constitutional law.

Are there any interpretive takeaways in Punish Treason? Will the book influence constitutional interpretation? Those who place great interpretive significance on a “new birth of freedom” interpretation of the Reconstruction Amendments are likely either to repudiate Graber’s conclusion, or to accept it grudgingly, or to ignore it, but in any case to hold onto an idealized vision of “the Second Founding” in spite of it. These reactions, if they are the reactions, speak volumes about the felt need for founding myths. We see this need in the Supreme Court’s compulsion to fight the pro-segregationist historical argument to a draw in Brown v. Board of Education; we see it in the persistence of originalism, despite that theory’s glaring intellectual flaws and contradictions; we see it across the political spectrum.

To me, the interpretive takeaway of Punish Treason, Reward Loyalty, is very simple and very important. It is that some version of the “living constitution” is the only sensible and legitimate approach to constitutional interpretation. It is that, for the umpteenth time, we are again reminded that originalism is nonsense, because we simply cannot be bound by what those who framed and ratified constitutional provisions thought they were doing. We can only be grateful that the “framers” of the past, in addition to giving us constitutional provisions dealing with time-bound issues of immediate urgency—whether the prohibition on taxing exports or the guarantee or repudiation of debts from a particular war—also from time to time speak in “majestic generalities” that we can reinterpret for our own age.

David S. Schwartz is Frederick W. & Vi Miller Professor of Law, and Vilas Distinguished Achievement Professor at the University of Wisconsin Law School, and Editor-in-Chief of the Journal of American Constitutional History. dsschwartz@wisc.edu