Saturday, March 28, 2015

Commemorating the Joint Committee on Reconstruction

Gerard N. Magliocca

This is a year filled with sesquicentennial anniversaries of the Civil War.  Lee's surrender to Grant, Lincoln's assassination, and the ratification of the Thirteenth Amendment all occurred in 1865.

But another transformative event of 1865 may not be celebrated at all.  In December 1865, Congress created the Joint Committee on Reconstruction, which gave us the Fourteenth Amendment.  As far as I know, this conclave, which amounted to a Second Constitutional Convention, has never received any official recognition.  Given that Reconstruction was condemned as a disaster until the 1960s, this lack of respect is unsurprising.  We are well past that point now, though, and thus I hope that many elected officials, law schools, and bar associations will work to rectify that wrong.


"Fairly construed, these amendments may be said to rise to the dignity of a new Magna Charta."

-- Justice Swayne

Notable the 13A became official in December 1865. See also:

A full understanding of the history here is important. While we watch stuff on C-SPAN about the Civil War, this sort of thing should be covered too. It is more important than learning a bit more about some battle.

Let's put this in perspective:

"Given that Reconstruction was condemned as a disaster until the 1960s, this lack of respect is unsurprising."

The Warren Court's unanimous decision in Brown v. Bd. of Educ. in 1954 was foundational as it led to the civil rights movement that brought forth the Civil Rights Acts in the mid-1960s. Reactions to both Brown (and follow up cases) and the movement in the former slave states resulted in former Democrats in those states switching parties and eventually becoming the base of the Republican Party. (Recall Nixon's Southern Strategy in 1968 that was interrupted by Watergate before being implemented by Reagan in 1980.) Originalism in the 1970, early 1980s, was aimed at the Warren Court; keep in mind the Warren Court's foundational Brown decision. Coincidentally the Federalist Society, fostered by alleged libertarians, paralleled the originalism movement. Today, few directly challenge Brown. The conservative direction of the Court followed, with chipping away at the Warren and Burger Courts' "activist" decisions, especially with the more recent Roberts' Court. Can't it be said perhaps that the current base of the Republican party continues to condemn Reconstruction? Yes, few directly challenge Brown but this base seems to challenge its implementation, more openly with the Obama Administration.


"In December 1865, Congress created the Joint Committee on Reconstruction, which gave us the Fourteenth Amendment. As far as I know, this conclave, which amounted to a Second Constitutional Convention, ...."

ignores the significantly reduced power of the former slave states which had in the "first" Convention empowered the 1787 Constitution for the benefit of slaveowners and slavery. So a "Second Constitutional Convention" is sort of a stretch.

Eric Foner's Op-Ed in today's NYTimes "Why Reconstructions Matters" provides a welcome summary of Reconstruction. A direct link is available at the Legal History Blog. Foner points to bad history that defended the South's Jim Crow reaction to Reconstruction.

And the Legal History Blog also provides a link in its Sunday Book Roundup feature today to Ian Millhiser's "Never Count on the Supreme Court to Protect Voting Rights" addressing with much more detail some of the points I raised. This is an adaption from the author's new Book appearing in the New Republic.


The significantly less control by former slave states (a few like Kentucky had full representation) does not really make it less a "constitutional convention."

The link provided in the first comment provides a justification, in the eyes of the Congress in place, for denying representation of former Confederate states before certain things were done.

It was de facto at least a type of constitutional convention.

I can accept the justification of a Congress that had to deal with President Johnson's overt racism pointed out by Eric Foner in his Op-Ed. My quarrel is with "What's in a name?" whether called a de jure or a de facto 2nd constitutional convention. It is feeble in my view to try to make the case in this post after 150 years. Rather, let's stick with Reconstruction and recognize its failures despite the Reconstruction Amendments until the Warren Court titled against Jim Crow by means of ... drum roll ... the Reconstruction Amendments. (And no, no credit goes to the Lochner Era for the progressivity of the Warren Court.) Millhiser's adaptation demonstrates well the importance of Selma in the struggles of the civil rights movement 50 years ago. Alas, if only the Roberts Court conservatives opened their eyes to the realities of racism currently and especially following the Shelby County decision.

The ultimate "promissory note" (to cite Martin Luther King Jr.) might not have been paid in full even today. But, the 13A-15A along with the process set up to return former Confederate states to the fold, does to me seem de facto a type of second constitutional convention. The significant change to the constitutional order etc.

[We now have Texas going to the Supreme Court to have the power to deny authorizing a recognition of veterans of the war on their license plates. Time goes on.]

I'm not tied to the term myself. For instance, a few people are still concerned that the 14A was "coerced" or something. These same people don't really seem to care that only a small subset of the population had a say in the ratification of the Constitution. Anyway, putting aside that there is a justification, it has been 150 years. It has been settled.

While I'm in accord with Joe's:

"Anyway, putting aside that there is a justification, it has been 150 years. It has been settled."

the meaning, the interpretation/construction of particularly the 14th A is not settled. Maybe it shouldn't be fully settled as there continue to be steps taken to unsettle the 14th A that cannot be fully anticipated. A broad spectrum of 14th A views are expressed in the many amici briefs in the SSM case before the Court. Recall the challenges to Brown v. Bd. of Educ. (1954) and the Civil Rights Acts of the mid-1960s that continue to this day.

Back in my Dixieland introduction to jazz days, one of my favorites was "Back Home in Indiana." But I wasn't toe-tapping when Gov. Pence danced around questions on the discriminatory effect of the Indiana religious statute he signed into law.

Well, I won't dispute that caveat. I have noted that I don't even think the seceding business has been settled for all time. The legitimacy of the 14A itself seems pretty settled now.

My initial reaction to Gerard's " ...sesquicentennial anniversaries of the Civil War" project was similar to Seinfeld's Elaine Benes' reaction to "birthdays at the office." Of course the subject of the former is more important than the latter. But too many special occasions to celebrate/observe may result in a forest in which the trees cannot be distinguished. If one digs deep enough in history, one may find many sesquicentennial anniversaries du jour to celebrate. Unlike Elaine, I do like cake, but not birthdays. Now let's dance.

Did I get caught up by a Larry Solum April Fool's at his Legal Theory Blog? On April 1st, Solum had a post on Akhil Reed Amir's "Constitutional Innuendo" with a lengthy abstract that focused on the theme of the article, to wit, "sextualism." I linked as provided and I read on my desktop Amir's 10/1/2003 article "Architexture" in the Indiana Law Journal. But the word "sextualism" did not surface in the article's 31 pages. But I enjoyed the dated article as Amir raised quite a few of the points that have been raised in (usually off-topic) comments at this Blog by "We, the Usual Suspects." I recommend highly this article. But I didn't realize until completing my reading that I was snookered, apparently, by Solum. Then I recalled that he has done this in the past. Yes, I went "snipe" hunting ending up without sextualism and what it might promise; but I did bag a great article by Amir that the Constitution was not built like a "brick sh**house" but with a design, if one takes care to read it.

This raises the question whether Mike Dorf at his Blog got into the act with his post on Dersh's "mano-a-mano" challenge of Prof. Cassell.

Correction: "AMAR, " not Amir.

Sorry. But it's tough enough dealing with textualism, originalism, architextualism and now there is - or may be - sextualism.

Here's a link to commentary on past Larry Solum Legal Theory Blog April Fool's posts:


The NYTimes Disunion series today (4/4/15) features the 150th anniversary of the end of the slave trade.

May 1, 2036 will be the sesque-centennial of the "Original May Day." (I should live so long!) Comments at this Blog are in the doldrums despite many current viable serious issues on many tables. One major issue is income inequality. Some say America is in a Second Gilded Age. A very few today (we know who you are) think the first Gilded Age were America's best days. So to provide a little wind for the sails, check out at :

Steve Fraser's "Plutocracy The First Time Around Revisiting the Great Upheaval and the First Gilded Age." And consider whether indeed we are currently in a Second Gilded Age. Some will appreciate the article's dark humor of the past applied currently.

This comment has been removed by the author.

Erik Loomis of "Lawyers Guns & Money" blog has had a few interesting links and discussions regarding the slave trade etc. He also has a long ongoing "this day in labor history" series. Prof. Loomis is a bit much at times, but his history material is consistently interesting. [e.g.]

He also flagged that Emma Goldman once opened an ice cream shop. I checked out her autobiography where this tidbit was referenced. For the "golden age before the Constitution died" brigade, one tidbit was how she got convicted for giving birth control lectures around the time Lochner was decided. She spent a few days in jail in NYC. The 50th anniversary of Griswold v. Connecticut is this June.

One other thing he flagged was writings of Rachel Hope Cleves on same sex marriage over history, including her recent book "Charity and Sylvia: A Same-sex Marriage in Early America." She also wrote an interesting article (which I was only able to get from behind an academic wall) on the general subject.

Contra Justice Alito, no same sex marriage is not "younger than cell phones." History shouldn't just be left to conservative "originalists."

Speaking of "conservative originalists," let me follow up my off-topic comments on Brian Tamanaha's Judicial Review post now firmly in the Archives of this Blog, to note that at the VC Blog Randy Barnett accommodates Joel Alicea's "Yes, you are imperiling originalism:" A response to Professor Barnett. Jack Balkin, who had been criticized along with Randy in Joel's "Dead Men Rule" originalism, has been sitting on the sidelines, probably with a smile on his face, in what may become a "mano-a-mano" event similar to the one described by Mike Dorf at his blog on April 1st.

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There will be a commemoration of the creation of the Joint Committee on Reconstruction and the day that southerners were barred from Congress. The Thaddeus Stevens Society will reenact the exclusion of southerners at the Thaddeus Stevens College in Lancaster, PA on Friday, December 4, at 6 p.m. For more information, email

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