Recovering Reconstruction

To build on Mark's post, I want to point out that there are significant obstacles for lawyers who are inclined to interpret Reconstruction broadly (or just correctly), let alone for those who aren't.

First, there are no detailed notes on the discussions of the Joint Committee on Reconstruction, which was created 150 years ago this month. While Madison's Notes on the Constitutional Convention are flawed (for example, they were not published until long after the fact and were revised substantially by him after 1789), at least we have some sort of record of what was said in Philadelphia.  For the Joint Committee, by contrast, we have only a journal with bare-bones minutes.  Imagine how much constitutional debate would have been enriched if we knew how John Bingham, Thaddeus Stevens, and the others on what amounted to the Second Constitutional Convention said behind closed doors.

Second, there is no Federalist Papers for Reconstruction.  Bingham and Stevens never had the time (or probably the motivation) to write a series of detailed essays defending and explaining their work.  Courts and lawyers, though, often need this sort of explication to understand the context of the text that they are required to apply.

Third, there is no equivalent of Farrand's Records on the Reconstruction Amendments.  Good luck trying to find a single source that nicely organizes the debates of the Thirty-Ninth Congress, the ratification debates in the states, or the public statements and private letters of those Founders.

There's nothing that we can do about the first two problems, short of a miraculous discovery of a lost manuscript, but we can address the last problem.  Perhaps the best way to honor Reconstruction on its sesquicentennial is to start creating a definitive collection of its primary sources.  This is not a sexy task and is probably too much to ask of one person, but we would all benefit from such an edition.