Balkinization  

Thursday, June 24, 2021

An Unparalleled Reconstruction Political Time Machine

Guest Blogger

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

Christopher Green

Kurt Lash's new collection of documents on the Reconstruction amendments is, without a doubt, the best single place to go in order to recapture, first-hand, the intellectual environment from which the Thirteenth, Fourteenth, and Fifteenth Amendments emerged. It deserves a place on a shelf—given its heft, a relatively sturdy shelf—of every serious student of the Constitution. That should include, of course, every judge in the country, a big part of whose job involves the interpretation and application of the Reconstruction amendments. And when those judges have a chance, they should read through the whole thing. In the post-Lash age, seminar papers on the Reconstruction amendments will be orders of magnitude easier to write and debates on their meaning far easier to conduct.

The collection is pretty big, both in its 8½-by-11 page size and in its total length. By my rough count, the two volumes have about a thousand words a page, and about 1250 total pages, for about a million-and-a-quarter words in all. Almost all of that mass consists of the original documents; all together, Lash’s wonderfully-concise introductions take up only about 40 pages, about the size of a big law review article these days. Still, even these million-and-a-quarter words do not come close to exhausting the relevant material that illuminates the intellectual world of the Reconstruction amendments.

The most valuable parts of the Lash collection are his materials on the ratification debates, which he had to assemble state by state. While the Cincinnati Commercial collection of speeches from the campaign of 1866 covers a lot of relevant ground, it is only a small part of Lash’s material on the Fourteenth Amendment’s ratification. Most states’ governors gave extensive descriptions of the amendment in presenting it to their legislatures to consider ratification, and pulling all of these statements together was no mean feat. By far, the best single collection of Fourteenth Amendment ratification debates is that from Pennsylvania during January and February 1867, and I am somewhat amazed not to have encountered it before, though in looking for earlier references to it, I have found that Horace Flack and Earl Maltz’s books each mentioned it.  Lash devotes about 10 of his pages to this debate, longer than any other ratification document, but even that amounts to only 5% of the discussion in the Pennsylvania legislature. The entire Pennsylvania Fourteenth Amendment debate in the original Legislative Record—about 100 densely-printed Congressional-Globe-style pages with about 2000 words a page—is well worth studying.

The Pennsylvania material, though, is just the biggest trove of material that I had somehow missed in my earlier interpretive canvasses of Reconstruction. Hundreds or thousands of valuable new-to-me details are sprinkled throughout the collection. Even for material I had known well, like the 1866 speeches from the Congressional Globe, it is very nice to have it in more accessible, readable format. A thousand words per page is a lot easier on the eyes than two thousand. This difference also marks an improvement in Lash’s materials over the much-more-densely-printed Founders’ Constitution collection.

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Wednesday, June 23, 2021

The Continuing Value of Documentary Collections in Originalist Theory

Guest Blogger

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

 Lee J. Strang

Collections of important historical documents have long held value for historians, legal scholars, teachers, and American citizens of all stripes.  Henry Steele Commager’s Documents of American History was first published in 1934 and has reached its tenth edition.  In this century, Bruce Frohnen’s, The American Republic: Primary Sources (2002), and American Nation: Primary Sources (2009), provide two volumes of documents covering American history up to World War II.  Now comes Kurt T. Lash’s, The Reconstruction Amendments: The Essential Documents (2021), whose documents explain, as its name suggests, the fundamental constitutional changes wrought by the Civil War.  My post will catalog the place within originalist scholarship and theory that Lash’s and other collections should continue to hold. 

Early on in the evolution of originalist theory and practice, collections of primary source documents were one of the key tools of originalist scholarship on the Constitution’s meaning in addition, of course, to primary source documents themselves.  These collections were valuable to early originalist scholars for two key reasons.  First, the collections represented the expert editor’s judgment that these were the most important historical documents relevant to American history or a facet of that history.  Second, the collections contained indices to direct scholars to particular documents and passages most relevant to the scholar’s inquiry. 

One thing one can say for certain about originalist theory is that it has changed significantly during the past forty years.  As originalist theory has developed more recently, it contains a number of distinct and mutually enriching techniques of historical research to identify the constitutional text’s public meaning at the time of ratification.  Originalist have identified five analytically distinct research techniques that contribute to ascertaining the text’s original meaning.  These different techniques were the product of many causes, including originalism’s theoretical development and the constituent components of original public meaning. 

A key benefit of this multi-pronged approach is to utilize a variety of different mechanisms to provide as much support for uncovering, and the highest level of confidence in, the original meaning.   This occurs when all of the techniques support the same original meaning.  A second valuable product of this multi-pronged approach is that it also signals when scholars should not have confidence in a result.  When some of the techniques point to an original meaning, though they do so weakly, or when one or two of the other techniques do not support that conclusion or push away from it, then a scholar cannot be confident in his conclusion.  Third, originalists will also be able to say with a high degree of confidence when there is no determinate original meaning.  This could occur if each of the techniques fails to identify a determinate meaning, or if some techniques strongly push against the others’ conclusions. 

Collections like The Reconstruction Amendments will be valuable to some of these techniques and not to others.  Below I describe five techniques employed and identified by originalist scholars to ascertain the Constitution’s meaning, and whether and how Lash’s collection will assist those techniques.  (My catalog of techniques overlaps with but is different from Larry Solum’s methods identified in Originalist Methodology and Triangulating Public Meaning.)  Then, I briefly summarize the place of such collections in constitutional construction.

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Tuesday, June 22, 2021

Atrophying Congressional Procedures

David Super

      The point of legislating is (usually) to pass legislation.  Accordingly, Members of Congress and those seeking to influence them focus most heavily on the actions and decisions that determine whether proposed legislation will become law.  Experience teaches, however, that some of these crucial tests are more difficult to pass than others.  This further concentration of energy and attention on the make-or-break event often causes the easier procedures to become taken for granted or even to partially disappear. 

     A common example is the requirement that bills receive three readings before a final vote.  If all the attention, and all the realistic opportunities to change or kill the bill, come on the third reading, the first two readings may either be waived by unanimous consent or performed in a near-empty-chamber by a long-suffering clerk in front of a bored presiding officer. 

     Similarly, for many years Congress constrained spending with the equivalent of the two-signature requirement many organizations have for large checks.  Programs could only be funding if Congress first enacted authorizing legislation (which went through authorizing committees) and then passed appropriations (which went through appropriations committees).  As political and procedural pressure converged on the appropriations stage, the authorizing stage atrophied significantly.  Authorizations for many programs, often with lusty spending figures, became easy to pass and hence the source of cheap, if misleading, headlines for Members.  Blocking an authorization often proved not worth the trouble as both chambers became adept at circumventing the rules that theoretically prevent them from appropriating money for unauthorized programs.

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Embracing the Entirety; Close and Distant Reading of The Congressional Globe

Guest Blogger

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

Lea VanderVelde

Kurt Lash’s new two volume collection is long overdue, but perhaps it arrives too late.  It is now possible to consider the Reconstruction debates in their entirety. 

Accessing the Reconstruction debates has always been problematic.  The Congressional Globe, as the series was then called, was set in type that was hand-carved and hand-set. This artisanal method meant that even the same word did not image identically each time. This doesn’t matter to the human eye, but it does to digitization.  The page layout is also problematic. The oversized pages are set in three narrow columns and an extremely tiny font. Given this format, a magnifying glass is useful, and on-line versions do not to improve much on the 3-column format. The narrow columns create frequent word breaks  making searching difficult.  From the 43rd Congress on, a government printing office published the records and changed the page layout. These later volumes are much easier to digitize, see, for example, Gentzkow, et al. (2018) who have digitized the U.S. Congress speeches from 1873 to 2017,[1] but by 1873 much of the heady period of constitutional reform had ended.

For decades lawyers, legal scholars and historians have depended upon Alfred Avins 1967 volume and index to navigate through the debates.[2] Avins improved upon the Globe’s own index which was very ineffective.  But so much of civil rights has been re-imagined since 1967, that Avins’ work has lost its usefulness.

Professor Lash’s collection is one approach to the problem.  It begins with antebellum constitution and a collection of texts that are indisputably important to understanding the Amendments.  These texts, like the Northwest Territorial Ordinance of 1789, and the Federalist papers, are already available on line at sites like Avalon. Nonetheless, it is convenient to have a hard copy on one’s bookshelf.  This reader also found the segments on ratification particularly worthwhile.  It is difficult to track what is happening in the states during ratification.  Yet, here, as in any selection, the basic issue is what to prioritize and what to omit.  Lash supplements official statements with newspaper articles, a selection that favors The New York Times, which is also readily available on-line. One wonders how representative these selections are.  I can say with some confidence after reading several decades of The Missouri Republican, that that St.Louis-based newspaper, which was the paper most widely read west of the Mississippi, rarely if ever reprinted articles from The New York Times.

But the Reconstruction debates are the holy grail of that period of constitutional amendment. And it is that discourse to which I wish to devote most careful attention.  The Globe is the remarkable transcription of an extended discourse over twelve successive years of constitutional and legal change.  As historians recognize, the long American nineteenth century can be split in two by the Civil War and Reconstruction.  Afterwards, everything was different. In its day-by-day accounts, pausing only for recesses, The Congressional Globe identifies markers of that transition.

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Monday, June 21, 2021

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.

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Sunday, June 20, 2021

What Reconstruction Demonstrates about Constitutional Change

Guest Blogger

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

Richard Primus 

            The Reconstruction Amendments embody the greatest set of changes to the U.S. constitutional system since the 1780s.  As such, they offer windows onto two fundamental questions of constitutional law.  One of those questions is about the relationship of the change those Amendments represent to the change that the 1780s represents—that is, in the normal terminology, the relationship of Reconstruction to the Founding.  The other question is about the relationship of formal constitutional amendments to substantive constitutional change. 

            Kurt Lash’s two edited volumes, called The Reconstruction Amendments: The Essential Documents, embodies an answer to the first of those questions.  The collection of documents is an impressive achievement: thorough, textured, and provocative.  Its compilation is a service to the field, but the work is more theorized than the compliment “service to the field” often connotes.  And one of the important respects in which the work is theorized is in Lash’s choice to assert—and, depending on the reader’s judgment, perhaps to demonstrate—a perspective on Reconstruction’s relationship to the Founding. 

The gestation of the Reconstruction Amendments, Lash maintains, began not during the Civil War nor even in the prior decades of sectional strife but all the way back in the eighteenth century.  “[T]he time period involved,” Lash explains in his Introduction, “can reasonably be viewed as extending from the 1780s to the 1880s.” (I.ix)  And so the Reconstruction Amendments’ “essential documents,” as Lash presents the story, include the Declaration of Independence, the Northwest Ordinance, the 1787 Constitution and the first twelve Amendments, and half a dozen Federalist Papers, as well as many other documents predating secession. 

            Lash is on to something important with this framing.  He has not made the publication of these volumes into a moment for articulating a thorough argument for the perspective—except, of course, in the sense in which his selection of the documents is the articulation of an argument.  Lash mostly lets the documents, and the selection, speak for themselves.  This symposium is accordingly less an occasion for engaging with an idea that Lash offers in detail than an opportunity to reflect on the significance of the Reconstruction Amendments from the vantage point that Lash’s selection method suggests.  What, then, might we recognize about (or based on) the Reconstruction Amendments if our point of departure is the thought that those Amendments were nearly a century in the making?

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Saturday, June 19, 2021

Not Too Much, Not Too Little: Frederick Douglass in Kurt Lash’s Reconstruction Volumes

Guest Blogger

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

Bradley Rebeiro 

In his introduction to his two volumes of essential Reconstruction documents, Kurt Lash explains that he sought to produce a collection that would be neither excessively long nor unhelpfully narrow. Lash has hit the Aristotelian mean, providing just the right amount of primary material to facilitate insight into the political and constitutional complexities leading up to and engulfing the Reconstruction period. Scholars, judges, and citizens who seek to investigate the intricacies of Reconstruction will find Lash’s The Reconstruction Amendments: The Essential Documents invaluable. 

Lash manages to do for the Reconstruction Amendments what Ralph Lerner and Philip Kurland did for the Founding era: assemble the most important primary documents in one collection. From the relevant Federalist Papers to Dred Scott to debates in the Thirty-Ninth Congress, Lash includes the central works that informed the antebellum Constitution, as well as the major debates in Congress concerning the Reconstruction Amendments. He also highlights public debates, including the voices of many insufficiently-known participants that the conventional narrative too often forgets. Here especially, Lash’s work will assist in both broadening and deepening future Reconstruction scholarship. 

There are many public figures and several facets of Reconstruction that can one could highlight in Lash’s volumes, but I will focus here on Frederick Douglass and the Fifteenth Amendment. Douglass is one of the underappreciated voices that Lash brings back into the spotlight. To be sure, most look to Douglass for an interesting, if not inspiring example of how to cope with the constitutional evil of slavery during the antebellum period. But few seem to find a use for Douglass in the context of Reconstruction. Interestingly, however, Douglass is one of only a few political actors that Lash mentions in his introduction to the whole collection (Vol. 1, X). But this was no accident. Studying Douglass in Lash’s work can teach us two things. First, it gives us a glimpse into the complexities of the time period. Douglass provides an example of how a political actor with a theory of justice is, at times, forced to act contrary to that theory in practice. An adamant advocate for equal natural, civil, and political rights for all people during the antebellum period, Douglass curiously minimized claims of justice during Reconstruction. This is seen most prominently in Douglass’s approach to the suffrage question for blacks and women. Second, studying Douglass provides an example of how Lash artfully straddles the line between information overload and information deficiency. Without wading through all of the minutiae, the researcher can consult Lash’s two-volume set to get a sense for the intricacies of Reconstruction and understand the circumstances that caused Douglass to pursue his chosen course.

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Friday, June 18, 2021

Kurt Lash on Reconstruction (2): Is the Fifteenth Amendment an Embarrassment?

Sandy Levinson

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

Having offered very general remarks about Kurt Lash’s valuable collection of materials on the gestation of the Reconstruction Amendments, let me now turn to the specific history of the Fifteenth Amendment that he has now made available to us.  Is it, in its own way, an embarrassment for the contemporary lawyer or constitutional theorist, especially if she professes to be an “originalist”?  I used to suggest to my students that at least some amendments to the Constitution were not really necessary in order to change legal reality, inasmuch as really talented lawyers could read whatever the amendments were thought to provide into the existing Constitution.  So I proposed that some of the amendments might be read as “guides for the dimwitted,” who were intellectually unable to engage in truly sophisticated (or some might say imaginative) constitutional interpretation or to the “malevolent,” who suffered from no deficiencies of intellect but instead were ideologically committed to the particular values underlying what they posited as the truly “correct” theory of the Constitution.  These values, of course, could be to maintaining as much as possible of the ante-bellum order as possible even taking into account, for example, that the formal institution of chattel slavery was now irretrievably forbidden.  

So I want to turn to truly illuminating speeches made by Massachusetts Rep. George Boutwell, the Chair of the House Judiciary Committee, and by some other members of the Congress, with regard first of all to the very need for the Fifteenth Amendment and then to its scope.  Perhaps my best-known essay is The Embarrassing Second Amendment, published thirty years ago at a time when there was relatively little academic interest in that Amendment.  Both liberals and conservatives had their own reasons to feel embarrassed by its presence, liberals, perhaps, because it protected guns at all, conservatives because, I believed, the origin of the amendment lay in protecting to at least some extent the practical possibility that American communities might revolt against what they considered to be an oppressive and tyrannical local or national governments.  The history of Reconstruction is especially interesting in this regard, inasmuch as many African-Americans agreed with Roger Taney's statement in Dred Scott that an attribute of citizenship was the right to bear arms and that such arms bearing was essential to protect themselves against the terrorism of the Ku Klux Klan and other devotees of white supremacy.  But I also want to suggest that there are some embarrassing aspects of the Fifteenth Amendment (as there are, for reasons already suggested, with the Thirteenth Amendment) that are very much worth discussion by those who profess to take “constitutional theory” seriously.

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Thursday, June 17, 2021

In Praise of Evil Thoughts

Andrew Koppelman

Freedom of thought means freedom from social tyranny, the capacity to think for oneself, to encounter even shocking ideas without shrinking away from them. That aspiration is a core concern of the free speech tradition. It is not specifically concerned with law, but it explains some familiar aspects of the First Amendment law we actually have – aspects that the most prevalent theories of free speech fail to capture. It explains the prohibition of compelled speech, and can clarify the perennial puzzle of why freedom of speech extends to art and literature. It also tells us something about the limits of legal regulation, and about the ethical obligations of private actors.

I elaborate in an article just published in Social Philosophy and Policy.  The print version is paywalled, but I have posted the typescript at SSRN, here.

Ken Paxton Shoulda Hired a Legal Philosopher

Joseph Fishkin

It has been a morning of overlapping consensus at the Supreme Court: in both California v. Texas and Fulton v. Philadelphia, the Justices found their way to a broad (7-2 or 9-0) resolution of questions far narrower than what the plaintiffs in these lawsuits had hoped to win from a far-right court.

In the case of California v. Texas—and what an appropriate name for what is essentially a purely partisan lawsuit, the latest long-shot effort to unravel the Affordable Care Act through judicial activism rather than legislation—the Court simply found that the plaintiffs had no standing. This is fairly plausible. How, exactly, is somebody “injured” by the language in the ACA that says, yes you have to purchase insurance, but no, there will be no penalty if you don’t?

The plaintiffs’ best answer was this. Look, people are actually motivated to obey the law. At least some people. And some people will understand the ACA, despite the zeroing out of the penalty, as a “mandate” that they must purchase insurance. Therefore, some “small number” of people might conceivably buy insurance which they would not otherwise have bought, absent this language in the statute (the “mandate”). (The “small number” phrase comes from a sentence in a CBO report, which was actually saying, at _most_ this is going to be a small number, and we’re not sure who or how many if any.) Plaintiff states like Texas claim that as long as SOMEONE in Texas is buying insurance who otherwise would not have, Texas has to pay some money, which would give it standing. This argument also seems to me fairly plausible.

What the Court holds in California v. Texas is basically that the plaintiffs here didn’t offer any actual evidence that anybody is changing their behavior in response to the penalty-less mandate. Maybe someone somewhere is indeed buying insurance who wouldn’t otherwise. (Suppose there’s someone whose specific situation leaves them exactly in equipoise about insurance vs no insurance, with all the substantial benefits and costs balancing out, so that the thing that finally pushes them over the line to buy it is the penalty-less mandate—and their desire to obey the law as they understand it. It’s a big country; surely there are some people like that somewhere?) But the plaintiffs simply did not prove that anybody is doing this, Justice Breyer writes for the seven-Justice majority. “Nor does it explain why they might do so.” (italics in original)

That last sentence caught me. It seems that these plaintiffs were sorely in need of a legal philosopher! It takes some argument and explanation (perhaps also some evidence would be nice, but at the very least, an argument, not offered by the plaintiffs here) for why it is that people—at least a “small number”—might not be like Justice Oliver Wendell Holmes’ bad man—that is, why people might believe that we have good reason to obey the law, even when we know for sure that there will be no negative consequences of disobeying it. For a tiny fraction of the taxpayer dollars Texas and the other red states blew on this wildly ill-conceived challenge, they could have hired an empirical philosopher to study whether people in their states in fact say they are more likely to buy insurance, because they want to follow the mandate. It would be interesting to know the results of such a study; that way Texas AG Ken Paxton and his allies could at least marginally advance human knowledge, in their Quixotic quest to sicken and kill thousands of Texas citizens by throwing them off their health insurance plans and returning to the days of denials of coverage for pre-existing conditions.

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Kurt Lash on Reconstruction (1): Defining the topic, setting the canon

Sandy Levinson

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

What follows is a two-part review of Kurt Lash’s truly important collection of materials on “the Reconstruction Amendments” just published by the University of Chicago Press.  Both Lash and the Press have performed a genuine service to anyone interested in American constitutional history by bringing out these handsomely produced two volumes.  They will be an invaluable source of material (and insight) for anyone charged with teaching courses on the Constitution, whether to law students, undergraduates, or graduate students, or, for that matter, for any general readers with the patience to read the often fascinating debates over the nature of the Union following Appomattox and, save for some of the debates about the 13th Amendment, the death of Abraham Lincoln.  One can only hope, as with its prototype, the five-volume Founders’ Constitution published thirty years also by the University of Chicago Press, it will quickly be taken up by the Liberty Fund, published in a far more affordable, but still beautifully produced, edition and, very importantly in this day and age, made available for free to anyone who wishes to read online or to print out particular excerpts.  It would be a real shame if this splendid collection gets buried in university libraries or even the offices of those relatively few academics willing to pay the $125 price.   So Lash and the Press deserve kudos from all of us for the great time and effort put into this project.  

But, for better or worse, the purpose of a review is at least as much to express some reservations as to praise.  The praise is sincere, but so are some of my reservations.  In this first posting, I shall focus on some of the materials that are not included in the collection.  This touches on one of the central topics of Jack’s post, which is the reality that in his own way Lash is trying to create a canon for the future study of the Reconstruction Amendments.  Canons are both complicated and, especially in recent years, inevitably controversial.  On occasion there is objection to what gets included; here, the issue is far more what is absent.
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Kurt Lash and the Canons of Constitutional Law

JB

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

In 1998, when Sandy Levinson and I wrote about the constitutional canon, we identified three basic kinds of canons. The pedagogical canon focuses on materials that to be taught in law schools (or universities). The academic theory canon focuses on materials necessary (or helpful) for debates in constitutional theory. The cultural literacy canon includes materials necessary for citizens to understand the U.S. Constitution’s history and meaning.

As its name implies, Kurt Lash’s The Reconstruction Amendments: The Essential Documents, forms a constitutional canon—one focused on the history and meaning of the 13th, 14th and 15th Amendments. 

This is a significant scholarly achievement, and in this essay I want to focus on this achievement as a proposed canon.

Like all constructors of canons, Lash understood that he could not possibly include everything relevant to his subject. Limitations of time, space, and memory are a central feature of canons: what they exclude is just as important as what they include. As a result, controversies over inclusion and exclusion are central to fights over canons.

Lash explains that he wanted his collection to be both “long enough to be useful for a broad range of writers and researchers but short enough to be useable by that same group.” This remark leads naturally to the questions: usable for what and useful for what? What projects are made more salient, manageable, and visible by the construction of the canon, and what projects are made less salient, manageable, and visible? These, too, are central concerns of canon formation.

Consider Lash’s focus in light of the three kinds of constitutional canons that Levinson and I identified.

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Wednesday, June 16, 2021

What is Reconstruction?

Gerard N. Magliocca

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

The Reconstruction Amendments: The Essential Documents fulfills a need that was long felt but never met. Kurt Lash now stands alongside Max Farrand in doing extraordinary work to further constitutional knowledge by making a critical portion of our past more accessible. I want to focus my essay on Lash’s choices in arranging that knowledge.
 
Professor Lash is not the first person to create a documentary record of Reconstruction. On my bookshelf sits a copy of The Reconstruction Amendments’ Debates, which was edited by Alfred Avins and published in 1967 by the segregationist Virginia Commission on Constitutional Government. In the Preface, the Commission argued that the Constitution must be interpreted “in accordance with the intent and understanding of the framers of the particular provision under consideration.” Professor Avins and the Commission were convinced that Brown v. Board of Education was wrongly decided and that an objective review of the historical record would support their case. While Professor Lash is also an originalist, his collection is not like the one that Avins assembled.
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Balkinization Symposium on Kurt Lash, The Reconstruction Amendments: The Essential Documents

JB


This week at Balkinization we are hosting a symposium on Kurt Lash's new two volume collection, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.).

We have assembled a terrific group of commentators, including Christopher Green (Mississippi), Sandy Levinson (Texas), Gerard Magliocca (Indiana), Jennifer Mascot (George Mason), Darrell Miller (Duke), Richard Primus (Michigan), Bradley Rebeiro (BYU), Lee Strang (Toledo), Lea Vandervelde (Iowa), and myself.

At the conclusion, Kurt will respond to the commentators.


Sunday, June 13, 2021

The Problem with Half-Measures on the Filibuster

David Super

      What to do about the Senate filibuster is a much more difficult problem than progressives commonly assume.  As frustrated as I am with the ways it obstructs numerous parts of the progressive agenda, I doubt most proponents of abolishing the filibuster realize how much it benefits progressive causes.  Without the filibuster, the next time Republicans have unified control of the federal government, we could see the complete defunding of crucial agencies and the repeal or gutting of crucial civil rights, environmental, consumer protection, and financial regulatory statutes. 

     In the past, those agencies and statutes were protected by a combination of the filibuster, moderate Republican Members of Congress, and well-informed moderate swing voters who would punish extremism.  Smuggling mischief past those swing voters was difficult because the true significance of convoluted proposals could be effectively adjudicated by a handful of widely respected social arbiters in the Edward R. Murrow and Walter Cronkite mold. 

     Today, principled moderate Republicans have been primaried or forced into retirement, and the few swing voters are neither well-informed nor necessarily even moderate.  And outing nefarious legislative proposals’ true effects is extremely difficult with the lack of widely trusted authorities to provide definitive explanations.  Jimmy Kimmel may have saved the Affordable Care Act, but we cannot count on him to play that role repeatedly. 

     Thus, it is the filibuster alone that protects the Endangered Species Act, the Corporation for Public Broadcasting, and the Legal Services Corporation.  The filibuster surely is all that prevented Republicans from “updating” or “modernizing” civil rights, financial regulation, and environmental statutes into oblivion in ways that marginal voters would never understand or believe. 

     And it is reckless to assume that unified Republican control will not come again, perhaps quite soon.  Over 74 million voters were willing to re-elect Donald Trump after all he did in his four years in office.  The popular vote for the House is persistently close (especially when one discards effectively uncontested seats), and Republicans’ persistent strength at the state level is going to allow them to skew the electoral map heavily through redistricting.  To be sure, Democrats could re-enact any laws Republicans repeal and re-establish dismantled agencies, but the past four years have demonstrated that tearing down is much faster and easier than building back. 

     Eliminating the filibuster for legislation would have fundamentally different implications from the elimination of filibusters for confirmations of executive and judicial appointees during the Obama and Trump Administrations.  Senate Majority Leader McConnell made very clear during the George W. Bush Administration that he would eliminate the filibuster if Democrats blocked confirmation of any significant number of Republican judicial appointees.  Once he did that, the filibuster became useless to progressives and was rightfully eliminated by Senate Majority Leader Reid. 

     By contrast, Senator McConnell has repeatedly made clear that he values the filibuster for legislation.  He proved that by allowing important Republican priorities to fail rather than eliminate the filibuster.  Given his proven restraint on the legislative filibuster, Democrats can reasonably expect that if they resist the temptation to eliminate the legislative filibuster, it will be there for them when next they need it. 

     The most compelling argument for eliminating the filibuster is to enact voting rights legislation counteracting state voter suppression laws.  These laws increase the likelihood that Republicans can secure long-term dominance of the federal government without persuading a majority of the electorate.  Giving up the filibuster to pass voting rights legislation might make sense if that legislation clearly could make a big difference in securing more representative elections going forward.  The likely real-world effectiveness of the various Democratic proposals is beyond my expertise.  I will say, however, that it is important to differentiate between legislative proposals that are the best we have – noble gestures, but one that does not justify surrendering the enormous benefits the filibuster provides for progressive causes – from legislation that is genuinely likely to make a large difference even as it is applied by a very conservative judiciary. 

     Whatever the relative merits of keeping or killing the filibuster, one path that is almost certainly ill-advised is for the Democrats unilaterally to weaken, but not eliminate, the legislative filibuster.  This would truly bring the worst of all worlds. 

     An example of this sort of proposal is the idea that the Democrats would unilaterally reduce the threshold for invoking closure from sixty to fifty-five votes.  Current Senate rules require sixty-seven votes to change the filibuster.  Senator McConnell’s initial threat to abolish the filibuster for judicial nominees (which coerced Democrats’ votes for a raft of extremely conservative George W. Bush nominees), Senator Reid’s actual abolition of the filibuster for lower-court and executive branch nominees, and Senator McConnell’s subsequent abolition of the filibuster for Supreme Court nominees, all were essentially extra-legal moves.  Absent agreement from seventeen Republicans, any changes in filibuster rules would also be extra-legal.  If the Democrats extra-legally modify the filibuster, they can be quite certain that Senator McConnell would further weaken it to his purposes, or abolish it outright, next time he is majority leader. 

     The only way to preserve the filibuster in the next Republican Senate is to preserve it without any uni-partisan changes now.  Conversely, if Democrats are going to disregard Senate rules to change the filibuster now, they have little to gain by preserving part of it – and potentially seeing some of their agenda stalled as a result – because their partial restraint surely will not be reciprocated. 

     Some modest changes to the filibuster might be possible on a bipartisan basis.  A few narrowly defined classes of legislation have been exempted from the filibuster over the years:  concurrent budget resolutions, budget reconciliation laws, approvals of reports from non-partisan base-closing commissions, and certain actions under the Impoundment Control Act and the Congressional Review Act.  One can imagine Republicans agreeing to creating additional exceptions along these lines – but those, of course, would not be designed to advantage Democratic proposals specifically. 

     This August, I will be submitting to the law journals an article showing how a careful application, or plausible bipartisan modification, of existing rules can improve the functioning and democratic responsiveness of all branches of the federal government.  Because its goal genuinely is strengthening democracy rather than smuggling through the substantive progressive agenda, it will be interesting to see if the journal editors have any interest.   More immediately, in the next few days I will have a post on progressives’ misunderstanding, and inappropriate vilification, of Senator Joe Manchin, who is at the center of many of these questions. 

     @DavidASuper1

What Happens Next in American Politics

JB

Clay Jenkinson (Governing.com) interviews me.

For a longer answer, see How To Do Constitutional Theory While Your House Burns Down, to be published this fall in a Boston University Law Review symposium on The Cycles of Constitutional Time.



Ending the same-sex marriage wars

Andrew Koppelman

Real victory is converting your opponents. So the recent Gallup poll finding that 70 percent of Americans support same-sex marriage is a big deal, not just for the size of its numbers, but for the fact that this majority now includes 55 percent of self-identified Republicans. At this pivotal cultural moment, it is worth reflecting on what has happened — and what remains to be done. 

This could be the end of a bitter cultural war, or the beginning of a new one against the conservative Christians who are not yet reconciled to the new status quo. I’m on the winning side. I’d like to be magnanimous in victory. It’s time to end the war. 

I explain in a new piece at The Hill, here.


Wednesday, June 09, 2021

Beckwith on Lemon

Andrew Koppelman

 The Law and Liberty blog has published my response to an essay by Prof. Francis Beckwith, who blames the leading Establishment Clause case, Lemon v. Kurtzman, for institutionalizing a governmental preference for secularism and hostility toward religion.  I respond that Lemon’s terms are too vague for it to have done any of that.  The test is so mushy that it could have no effect unless supplemented by unstated premises.  The premises that drove the Court in that decision have appropriately abandoned, but the Lemon test had nothing to do with it.


Tuesday, June 08, 2021

Toward a much-needed new Constitution

Sandy Levinson

 For the past year--but particularly since Thanksgiving--I have been working, at the instigation of Michael Tomasky, the editor of Democracy Journal (and the new editor as well of The New Republic), with an extraordinary group of people who were charged to be audacious in imagining what kind of constitution the United States needed in the 21st century.  Our collective deliberations--and text--are now available at https://democracyjournal.org/magazine/61/the-democracy-constitution/. Any regular readers of Balkinization will recognize a number of the names of the delegates.  Steve Griffin, for example, was the indispensable and indefatigable Chair of our own Committee of Detail that took charge of putting our debates into the form of the document now before you.  


For obvious reasons, known to any of you who are actually familiar with my work, I hope this project gets wide attention because more than ever I view the Constitution as a clear and present danger to our national (and perhaps even the world's) survival.  Not everyone even within what I called the Tomasky project agrees, especially another well known Balkiinization name, Mark Graber, who publishes his dissent to our project for radical constitutional reform.  And in my own lengthy article of introduction, I conclude by acknowledging the debate between between Jack Balkin and myself over the respective weight of "constitutional rot" and "constitutional design."  It is not that I disagree with Jack about our actual condition of constitutional rot.  All one has to do is to read the daily newspapers to realize how truly terrible our constitutional culture is.  But I continue to believe that our 1787 design, remarkably unchanged in too many respects since then, make their own contribution.  One should not be forced to choose between them.  


I suspect that Jack would be open to offering guest appearances to those who wish to offer extended responses, pro or con, to the overall project or to some of the particular ideas.  


Friday, June 04, 2021

How to Do Constitutional Theory While Your House Burns Down

JB

 I've posted my latest essay, How to Do Constitutional Theory While Your House Burns Down, on SSRN. 

Here is the abstract:

The events of the past five years, culminating in the 2020 election and the January 6th attack on the U.S. Capitol, have posed a new and urgent set of questions for American constitutional theory.

The first is constitutional diagnosis: What has gone wrong with our constitutional system?

The second is constitutional repair: what can we do in the short run to repair the damage that has already occurred to our democracy?

The third is constitutional reform: What reforms are necessary, either through constitutional amendment or sub-constitutional means, to strengthen our constitutional democracy for the long run?

The fourth is constitutional maintenance: What institutions can we shore up or create to maintain our constitutional democracy as it meets the challenges ahead?

These questions emerged for many different reasons: elite and popular polarization, the unravelling of the New Deal Settlement, increasing constitutional dysfunction, democratic backsliding, and accelerating constitutional rot.

My recent book, The Cycles of Constitutional Time, engages with these new sets of questions, and especially the question of constitutional diagnosis. Its use of cycles is heuristic. It focuses on the rise and fall of constitutional regimes, increasing and decreasing political polarization, and episodes of constitutional rot and renewal in order to understand the interaction of political agency and political structure that generates constitutional development over time.

The analysis in The Cycles of Constitutional Time ends in early 2020. The remainder of this essay discusses developments since the book was written: the old order's attempts to maintain political power through minority rule, and what it would take for a new constitutional regime to form. The essay briefly outlines three possible paths of future constitutional development.

The cycle of rot and renewal in American constitutional history is not an iron law of politics. Rather, it is a sign of the remarkable durability of our constitutional system -- that it keeps bouncing back from the forms of democratic decay that have done in many other republics before it.

Yet this durability comes with a price. It makes the system unwieldy and it prevents a great deal of potentially valuable change, including the very changes that might be necessary to reverse the growing decay in our institutions. A central question for constitutional theory is whether our system’s resistance to rapid change will finally be its undoing, or whether pent-up frustrations will produce mobilizations that successfully renew American democracy.



Thursday, June 03, 2021

The Abolitionist Power

Mark Graber

 For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

The antebellum Senate was stocked with far more abolitionists committed to both the abolition of slavery and racial equality than support for abolition and racial equality in northern states might suggest.  Benjamin Wade, Salmon Chase, John Hale, and Charles Sumner were among the committed abolitionists that repeatedly excoriated slavery, the slave power, and racial inequality on the floor of the Senate.  This abolitionist presence in the upper house of Congress during the 1850s did not reflect popular support for abolitionism.  With the possible exception of Massachusetts, popular majorities in all antebellum states were dedicated to more or less virulent strains of white supremacy.  Free Soilers and their sympathizers nevertheless gained prominence in the national legislature by striking deals in state legislatures closely divided between Jacksonian Democrats and Whigs.  The relatively small number of racial egalitarians in the state legislature consistently agreed to vote as a block for the local platform of whatever party agreed to send a confirmed opponent of slavery to distant Washington, DC.  Many state legislators who belonged to the major parties, far more concerned with the roads in their hometown than the status of often faraway African-Americans, accepted this bargain.  The end result was far more publicity and prominence for fights for emancipation and racial equality than persons familiar with the rules of the game and popular racial sentiments in antebellum America might have predicted.  American abolitionists and racial egalitarians rose to power in this and otherwise by playing constitutional politics rather than devoting themselves exclusively to constitutional law or moral suasion.

Until Justice be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction is a magnificent account of the fight for formal racial equality that took place in the United States from the late eighteenth century until the ratification of the post-Civil War Amendments.  Professor Kate Masur lovingly and meticulously details how most American abolitionists were as concerned with the status of African-Americans in the free states as they were to prevent the spread of slavery in the West and the existence of slavery in the South.  For every petition to Congress decrying the existence of human bondage in Washington, DC, there was a petition to a state legislature urging local officials to provide schools for persons of color, permit persons of color to testify in state courts and, in the Midwest, permit persons of color to become state citizens or even state residents.  These abolitionists were not content to rely solely on the power of their constitutional or legal arguments.  They played politics and often played politics well.

Read more »

Wednesday, June 02, 2021

All Civil Rights Movements Are Local

Gerard N. Magliocca

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

Kate Masur’s stirring account of the fight for racial equality in the ante-bellum period is a powerful reminder that national politics is an outgrowth of state politics. There is a tendency in constitutional scholarship to focus only on what occurs at the federal level or on the rhetoric of leaders after they reach federal office. Most politicians and judges in our history, though, began their careers in local or state government and developed their basic philosophy in that setting. This was true for most anti-slavery activists, and Professor Masur deftly shows how they learned the hard lessons of coalition building in states such as Ohio and Illinois as they sought to repeal laws that discriminated against Blacks. From those battles, men like John Bingham, Salmon P. Chase, and Abraham Lincoln forged a new vocabulary of liberty and equality that centered on the Privileges and Immunities Clause of Article IV, which in Bingham’s hands became the Privileges or Immunities Clause of the Fourteenth Amendment. 

Professor Masur’s focus on state politics reveals the critical role that free Blacks played in what she calls “America’s first civil rights movement.” At the national level, marginalized groups are greatly outnumbered and typically invisible. But there will always be some local communities where those groups are influential due to their larger relative size or to their organization, even when they cannot vote. Once the spotlight turns to those byways, the active work of free Blacks in fighting for their freedom becomes clear. Indeed, the book’s greatest contribution may be its emphasis on the role that free Blacks other than Frederick Douglas played during this era and the recounting of some of their individual stories. I was especially interested in the discussion of the pushback by Black activists against the agenda of the American Colonization Society, which advocated the emigration of free Blacks to Liberia and was a popular cause among white elites. While colonization remained a viable political option into the 1860s, opposition from the very people who were its supposed beneficiaries helped take the shine off of the idea and opened up space for more radical and fair solutions. 

One of the chief tools that free Blacks used in the states was the right of petition, which is a lost tradition in constitutional conversation that Masur brings to life. Today physical protests are the paradigmatic way for the disenfranchised to make their views heard. While that tradition can be traced back to the Boston Tea Party, the civil rights movement led by Martin Luther King Jr. made that mode of expression sacrosanct. In the nineteenth century, though, petition drives were much easier to organize on a large scale and were therefore the preferred method of protest. Petitions, unlike voting or some other forms of political participation, were open to anyone, including women and free Blacks. Legislatures at the time followed a norm that petitions must be taken seriously, which meant that the petitions for racial justice that flooded in could not be easily dismissed. This explains why the “gag rule” imposed against antislavery petitions by the House of Representatives in the 1830s caused such consternation and backfired on slavery’s supporters. 

Finally, Professor Masur’s attention to state politics draws out the underappreciated link between state law and racial injustice. The beginning and the end of Until Justice Be Done stress how the English poor laws, transplanted to the colonies, were used to justify discrimination. Usually that involved restricting the movement of free Blacks, excluding them entirely, or imposing legal disabilities on them with the claim that they would be a drain on the community. The Constitution omitted from the Privileges and Immunities Clause the exclusion for “paupers, vagabonds, and fugitives from justice” that was in the companion clause in the Articles of Confederation. Nevertheless, until the antislavery reading of the Privileges and Immunities Clause came along state law regularly treated Black citizens differently based on their economic circumstances as if the exceptions in the Articles were still there. Likewise, even after the Fourteenth Amendment was ratified the states continued to justify these distinctions through vagrancy (another inheritance from England’s poor laws), as Risa Goluboff demonstrated in her pathbreaking book Vagrant Nation. 

Book reviews are to some extent an exercise in asking why an author wrote her book instead of some other book. In that spirit, let me point our first that Pennsylvania gets the short end of the stick as compared to other states. For example, Thaddeus Stevens, who spent his adult life in Pennsylvania, was also schooled in politics through local and state office there long before he arrived in Congress. Professor Masur doesn’t have much to say about Stevens, but in fairness no book can adequately cover the politics of every Northern state. Another obvious question is why the coalition that Masur talks about was so unsuccessful after Reconstruction; a topic that she addresses only briefly. One thought is that the very local communities that sustained the first civil rights movements were disrupted by the acceleration of the Industrial Revolution after the Civil War. This economic disruption may have caused those communities to turn inward and concentrate more on their material self-interest rather than on racial equality. Freedom flows from optimism and confidence, and from a local or rural perspective confidence was scarce in the late nineteenth century.

In sum, Until Justice Be Done is a wonderful addition to the civil rights literature. Professor Masur’s book also suggests that local and state government is a better forum for egalitarian reform, which is a timely lesson in a period of partisan deadlock in Washington DC.

Tuesday, June 01, 2021

Legal Education: Does the ABA Respect Rule of Law?

Jason Mazzone

The ABA Section of Legal Education and Admissions has published some proposed revisions to its accreditation standards. The revisions concern some issues of student and faculty diversity. Most of the proposals won't matter to most law schools, which already do most of the things that would be required: having and publishing a non-discrimination statement; working to broaden access to the legal profession; requiring anti-bias training; and so on. As was likely inevitable, a few things in the proposed revisions don't make much sense. One is this: "A law school shall take effective actions that, in their totality, demonstrate progress in (1) Diversifying the student body, faculty, and staff; and (2) Creating an inclusive and equitable environment for students, faculty, and staff." Progress is not a useful benchmark: surely, at some point (notions of the permanent revolution aside), further progress is no longer possible or desirable. Some things look unwise: in the marked up version of the ABA document, the phrase "consistent with sound educational policy" has big lines through it. And other things skate close to directing unlawful employment and admissions practices, notably quota-close requirements that law schools identify and meet specific racial, etc. "goals" and maintain racial, etc.-specific "data" to track achievements and shortfalls.  Perhaps these missteps will be sorted out in the notice and comment period. 

I was mostly struck, though, by this provision: "The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s non-compliance." To describe a law as "purporting" to do something is to suggest it isn't really law. One possibility is that the law is being challenged as inconsistent with higher law (such as, in the case of a state constitutional provision, the federal Constitution). A second possibility (and there is a whiff of this in the ABA language I have quoted) is that the law is valid but it doesn't deserve compliance. Here, possibility one isn't available because it is clear that government can bar all consideration of race and other designated demographic characteristics in university admissions and employment just as Michigan did after the Supreme Court's Grutter decision. See Schuette v. Coalition to Defend Affirmative Action (2014). So that seems to leave possibility two, and the ABA Legal Education Section in the position of not caring what the law mandates. If so, law schools would be wise to ignore the ABA's purported requirement.                 

A Truly "Essential Book": On Kate Masur's Until Justice Be Done

Sandy Levinson

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

  Upon reading Kate Masur’s Until Justice Be Done, my immediate reaction was that it was a truly extraordinarily book from which I learned something on almost literally every page.  Although I have long taught law school courses that touch on the history of American race relations, I do not consider myself a true “expert” on the subject.   I could therefore not help wondering if perhaps my reaction reflected the extent to which I am indeed not completely immersed in the scholarly community from which Masur is writing.  So I was reassured by reading the equally extraordinary blurbs and early reviews that vouch for the importance of this book, all contributed by scholars of the first rank, all genuine experts by any conceivable criteria.  Consider only the following sample:  

Randall Kennedy describes the book as “revelatory… [and] essential reading.”  Stephen Hahn agrees that it is “essential” in delineating the ways that Americans in the period between the formation of the Union and the Civil War came to understand “definitions of citizenship and civil rights.” Alan Taylor describes the book as “a masterpiece of scope, insight, and graceful writing about the central question in the making, unmaking, and remaking of an American democracy. This is a book we will read and conjure with for a long time.”  David Blight, the author himself of what is surely the definitive biography of Frederick Douglass, adds that Masur’s book is “a tour de force of scholarship and lucid analysis.”  Keeanga-Yamahtta Taylor agrees that she has written a “remarkable and shattering book…. Breathtakingly fresh.”  And John Fabian Witt, writing in The Washington Post, assesses the book as “[m]omentous…a brilliant meditation on progress and its limits.”  Many more examples of such notable scholarly exuberance could be offered.

So I am now fully confident myself in stating that Kate Masur has written what should be recognized as a classic, upending lots of “conventional wisdom” about the nature of civil rights and protest movements in the United States prior to the Civil War.  It is also extraordinarily timely inasmuch as the United States is now experiencing not only a return to significant mass protest about the state of our social compact regarding race and ethnicity, but also quite bitter dispute even among scholarly luminaries about the implications of the 1619 Project—and its emphasis on a relentless and hegemonic white supremacy—as against more optimistic readings of the American past (and, therefore and inevitably, our present as well).  No book published in recent years deserves more careful study by anyone seeking illumination about the American past and pondering any “lessons” of that past for our present and future.

Read more »

Monday, May 31, 2021

Citizenship, Civil Rights, and the (Grass)Roots of Constitutional Revolution

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

William J. Novak

            In an influential article on “History and the Social Sciences,” Richard Hofstadter set an imposing standard for judging the best historical work.  Channeling the anxieties of every historian, Hofstadter criticized both traditional narrative histories where authors “rarely hesitate to retell a story that is already substantially known” as well as historical monographs that left readers “with misgivings as to whether that part of it which is new is truly significant.”  “Substantially new” and “truly significant” thus became the ever-evasive standard of excellence for professional historical research and writing.

            Kate Masur’s Until Justice Be Done: America’s First Civil Rights Movement passes Hofstadter’s stress test with flying colors.  She tells us something decidedly new – uncovering in unparalleled detail an entire antebellum civil rights movement dedicated to the cause of securing the rights of free African Americans against a raft of racially discriminatory state laws, northern as well as southern.  And she tells us something truly significant – providing a new and utterly convincing account of the historical roots of the Civil Rights Act of 1866 and the Fourteenth Amendment.  This book will forever change the way we think about the history of citizenship, civil rights, constitutional change, and the long struggle for racial justice in America.

            It is impossible to overstate the accomplishment here.  This is one of those extremely rare books that enters into a legal-constitutional field of complexity, confusion, and not infrequent error, and with a painstaking research effort in numerous new primary sources, brings order and clarity.  Oliver Wendell Holmes used to say that the mark of masters is “that facts which before lay scattered in an inorganic mass, when they shoot through them the magnetic current of their thought, leap into an organic order, and live and bear fruit.”  I got something of that feeling when reading this book.

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Sunday, May 30, 2021

The Antebellum Civil Rights Movement And The Antislavery Background Of The Fourteenth Amendment

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

Michael Les Benedict

            Kate Masur’s Until Justice Be Done is a major contribution to the history of the conflict over rights in the United States.  It will be the standard account of African American’s struggle for equal rights from the turn of the nineteenth century through the ratification of the Reconstruction-era amendments to the Constitution.  As such, it provides a new perspective on the origins of the Civil War constitutional amendments and the intention of the American people in framing and ratifying them. 

            Masur’s account deepens historians’ understanding of the antislavery movement in several very significant ways.  First, Masur gives us a new account of the origins of the Civil War-era constitutional amendments.  The classic view has been that there were antislavery origins to those amendments.  The great works that recovered those origins were titled The Antislavery Origins of the Fourteenth Amendment and “The Early Antislavery Backgrounds of the Fourteenth Amendment.”[1]  Both harkened back to abolitionist arguments articulated by white abolitionists like Alvan Stewart, William Goodell, and Lysander Spooner that slavery itself was unconstitutional and unconstitutionally deprived Americans of the rights to free speech, free press, petition, assembly, and due process of law.  William Wiecek’s classic The Sources of Antislavery Constitutionalism in America likewise attended only to the white abolitionists who developed the antislavery constitutional argument.[2]  Frederick Douglass rated one mention, as newspaper editor rather than theorist.  The natural conclusion one draws after reading Until Justice Be Done is that the origins of the Fourteenth and Fifteen Amendments lie not so much in antislavery constitutionalism but in what she calls “the first civil rights movement”—the black-led movement for equal rights that ran from the Revolution through the Civil War and into Reconstruction  (I prefer “equal rights” to “civil rights” as a descriptor of the movement Masur chronicles). 

            This leads to Masur’s second contribution.  Masur implicitly but clearly distinguishes between the antislavery movement per se and the movement for equal rights.  This insight is one of those jaw-dropping ones that makes apparent what had been implicit in recent studies of antebellum black activism.  Until now, historians have conceived of the great crisis of the mid-nineteenth century in terms of the antislavery movement.  Most of the historiography has concentrated on abolitionism.  We have numerous accounts of the Garrisonians.  For a long time they were credited with creating the intellectual, moral, and political environment in which Northerners finally confronted slavery.  The Garrisonians famously eschewed politics in favor of “moral suasion” in their campaign against slavery, bitterly condemning the “political abolitionists” who disagreed with their approach. Historians have begun to argue that it was the political abolitionists rather than the Garrisonians, who brought slavery to an end.  All these accounts treat calls for equal rights as an element of the antislavery campaign, with the Garrisonians especially committed and political abolitionists more ambivalent. 

            In recent years scholars have chronicled the work of black activists, stressing their quest for recognition as citizens, their demand to be considered Americans rather than outsiders.[3]  But Masur’s is the first synthetic account, and the first to conceive of these activities as a civil rights movement complementing but separate from the antislavery movement.  While the campaign against slavery and the campaign against racially discriminatory laws were related, they were not the same thing.  The distinction was illustrated most clearly in 1865, when Garrison successfully called upon the American Anti-Slavery Society to disband and discontinued The Liberator, while his old co-agitator Wendell Phillips insisted that the struggle would not be over until black Americans had equal rights.   I had never understood how Garrison could be so obtuse until I read Masur’s work.  Now I understand that for Garrison, the issue was slavery not equal rights.  He sympathized with equal rights for everybody, and the Anti-Slavery Society took a firm stand for equal rights not only for blacks but for women.  Garrisonians regularly called for equality of rights for freed people among their resolutions condemning slavery.  But the issue was slavery.  Equal Rights was ancillary.  Get rid of slavery, and equal rights would follow.  That was not the view of the black leaders of the civil rights movement.  They were contesting racially discriminatory laws in the North.  Garrison might think that these would dissolve once they no longer were needed to buttress slavery.  Black northerners knew better. 

            Although white abolitionists sympathized, it was black northerners who drove the campaign for equal rights.  Whites dominated the antislavery movement, with black northerners giving important and often crucial support.  (African Americans accounted for three-quarters of the subscribers to The Liberator, for example.)  A few black Americans, most famously Frederick Douglass, were leaders in both movements.  But Masur’s work indicates that we will understand developments better if we conceive of the two movements separately rather than as one.  It is appropriate for historians to speak of abolitionists and their black allies.  In describing he civil rights movement, Masur speaks of African Americans and “their white allies.”  There is a logic to this.  The black movement for equal rights was aimed at discrimination in the North more than at slavery in the South.  It grew explosively in the 1840s and 1850s after black northerners initiated the black convention movement.  These conventions represented, as their titles demonstrated, the “colored citizens” of the northern states in which they were called.[4]  Their resolutions and addresses to white northerners complained about the humiliating legal discrimination they faced.  Of course, there would be a resolution or two denouncing slavery, but the focus was on equal rights in the North. The national conventions were called by the state conventions and reflected their concentration on securing equal rights in the states.  The Thirteenth Amendment was the culmination of the white-led antislavery movement.  The Fourteenth and Fifteenth Amendments were the culmination of the black-led equal rights movement.

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Friday, May 28, 2021

Civil Rights Without Slavery

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

Kunal Parker

Until Justice Be Done is a monumental book.  Mapping out what she calls “America’s first civil rights movement,” Kate Masur explores the fraught history of multiple efforts, public and private, legal and political, by Whites and Blacks, to demand citizenship and equality for free Blacks between the American Revolution and the Civil War.  Decades of struggle, rewarded by successes and visited with failures, would culminate in the Thirteenth, Fourteenth, and Fifteenth amendments to the U.S. Constitution.

What free Blacks were up against was daunting.  Around 1800, as the number of free Blacks began to grow as a result of emancipation in the North and manumission in the South, states and territories all over the country began to seek ways of excluding and removing free Blacks.  Free states repurposed centuries-old restrictions on the movement of the poor to new effect.  They demanded bonds and sureties of free black entrants, excluded free Blacks from poor relief and public schools, and threw in a bunch of other restrictions for good measure, including prohibiting Blacks from testifying against Whites.  In the country’s capital and in the slave South, things were far worse.  Free Blacks who could not provide adequate account of themselves found themselves thrown in jail, the threat of being sold into slavery looming over them.  Black sailors on ships docked at Southern ports were forced into prison until their ships left port.  Throughout this period, the question of whether free Blacks were citizens of the United States—as opposed to of individual states--remained a hotly debated question.  Free black suffrage was the exception rather than the norm.  Free Blacks faced many of the legal disabilities faced by non-citizens and for many purposes fared considerably worse than white aliens.  The American Colonization Society was at the forefront of public and private efforts to transport free Blacks out of the country.

Read more »

Thursday, May 27, 2021

Rights, Power, and the First Civil Rights Movement

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

Laura F. Edwards

Kate Masur’s Until Justice Be Done: America’s First Civil Rights Movement is a stunning accomplishment. In this post, I first want to highlight the book’s historiographical contributions, which reshape conventional assumptions about political participation and the relationship between law and politics in the first half of the nineteenth century. Then I want to step back and consider broader implications that the analysis raises, but that Masur does not develop as fully, with an invitation for her to engage with these issues in her response. 

While building on an important, growing body scholarship that foregrounds African Americans’ political activism between the Revolution and the Civil War, Masur adds an important, new dimension to this story. As she shows, white Americans allied with African Americans to build a successful movement that placed civil rights and racial equality at the center of political debate at this time. The timing is crucial here. In conventional narratives, it is assumed that few white Americans, even those who supported the abolition of slavery, questioned racial inequality—or if they did, they did not organize in opposition to it. Such efforts would only come later, in the aftermath of the Confederacy’s defeat in the Civil War. Even then, support would be short-lived, based as much in a desire to punish white Confederates as it was in a principled commitment to elevate the legal status of African Americans. Masur shows that opposition to racial inequality had much deeper roots than previously thought. Activists not only saw immediate results within free states in the decades preceding the Civil War, but also shaped federal policy afterwards. 

Why has this movement been forgotten?  One reason is that we have been looking in the wrong places, namely the federal level, where legal and political historians have tended to focus their analyses—at least until recently. Slavery, not racial equality, dominated debate at the federal level. Questions about racial equality appeared less often for good reason. Within the federal system, as it was defined in first half of the nineteenth century, the federal government’s reach did not extend to such issues in as direct a way as was the case with slavery. It was the states that had purview over racially based restrictions, given their jurisdiction over the wide range of issues affecting the public order and the legal status of individuals. Joining an emerging body of work that has complicated our understanding of the new republic’s governing dynamics, Masur follows the jurisdictional lines of the federal system and shifts the focus from the federal government to states, where conflicts over racial restrictions were both enacted and challenged. The evidence of this first civil rights movement had been hiding in plain sight. 

The conceptual originality of Masur’s work, however, does not end there. The evidence of this civil right movement may have been hiding in plain sight, but the materials did not present themselves as obviously political. Nor did all the various pieces of the puzzle even seem related, scattered as they were across time and space. Putting events in Ohio together with those in Massachusetts and New York is not exactly standard methodological procedure in the world of nineteenth-century history. What makes the work so brilliant is Masur’s ability to connect seemingly unrelated events in different states: from the institution of racial restrictions through poor laws to state campaigns against those restrictions to, ultimately, the push to change the entire balance of power in the federal system so as to override state restrictions.

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