Balkinization  

Monday, January 04, 2016

More on Reconstruction

Gerard N. Magliocca

As a follow-up to my prior post, I was pleased to learn that Kurt Lash is putting together a collection of Reconstruction materials for the University of Chicago Press.  That is exciting news, and I look forward to seeing that book.

Another comment I received pointed out that the Report of the Joint Committee on Reconstruction can be understood as the Federalist Papers for that period.  There is some truth in that, though the Executive Summary of that Report focuses more on immediate political questions (are the ex-rebel states entitled to representation) rather than on broader constitutional principles.  Still, I am moved by the closing paragraph of the Report:
"Before closing this report, your committee beg leave to state that the specific recommendations submitted by them are the result of mutual concession, after a long and careful comparison of conflicting opinions. Upon a question of such magnitude, infinitely important as it is to the future of the republic, it was not to be expected that all should think alike. Sensible of the imperfections of the scheme, your committee submit it to Congress as the best they could agree upon, in the hope that its imperfections may be cured, and its deficiencies supplied, by legislative wisdom; and that, when finally adopted, it may tend to restore peace and harmony to the whole country, and to place our republican institutions on a more stable foundation."



Comments:

I am informed that Neil Cogan has put together a sequel of sorts to his "Complete Bill of Rights" a volume entitled "Complete Reconstruction Amendments" but unfortunately has yet to find a publisher.
 

Another comment I received pointed out that the Report of the Joint Committee on Reconstruction can be understood as the Federalist Papers for that period.

One was a report from a joint committee of Congress, the other were a collection of newspaper essays mostly from two signers of the Constitution which had no official character. So, yes, I can see some differences.

http://theusconstitution.org/sites/default/files/briefs/Report_of_the_Joint_Committee_on_Reconstruction.pdf

I don't think the two are quite comparable though do think the Report etc. can provide some useful original source material ala those used for 1787-1791 for the Constitution and the Bill of Rights (if I'm allowed to use that term).
 

And I'm looking forward to reviews of Kurt Lash's new book by historians.

By the way,The Originalism Blog also has a post on the Originalism Boot Camp at Georgetown Law this Summer. I assume a lot of thought was given to the Boot Camp phrase by originalists, as if training for constitutional interpretation/construction dominance. Maybe non-originalists will come up with a counter Summer camp with a less semantic military motif. Or is this a call to arms?
 

Off topic, Prof. Sandy Levinson signed this law professor statement that influenced the Obama Administration's latest announcement on guns:

http://www.acslaw.org/sites/default/files/Law%20Professor%20Statement%2011-12-15.pdf
 

Reading a bit much into "presumptively " constitutional, aren't they? They're treating it as though it were a statement that all that was certainly constitutional, rather than the simple disclaimer that they've only ruled unconstitutional what they actually addressed, that I read it to be. That said, they didn't go berserk with their requests, though they also seem not to realize that there are serious problems with some of what they advocate.

Separate but equal seems reasonable,too, until you learn that nobody who demands separate actually wants equal. Gun owners have good reason for opposing some of those measures, relating to the past behavior of those who'd enforce them.
 

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Joe, does three strikes mean "you're out!"?
 

Yes. No passed third strike. No catcher interference. Outta there.
 

Bear with me (unarmed, of course) this comment is not off-topic.

The Legal Theory Blog has post on Eric Segall's article titled "The Constitution Means What Judges Say It Means.' Since the article challenges originalism, the Blog's Larry Solum provides editorial comments as he often does when posting on such articles. Segall's article focuses upon David Strauss and Judge Posner and contrasts Prof. Randy Barnett who has a new book on originalism.

Over at the Originalism Blog, there is a post titled "Mark Graber (and Gerard Maglocca) on the Roberts Court and the Reconstruction," by Mike (I'm not Rappaport) Ramsey. This is followed by a post titled "Who Are the True Heirs of the Reconstruction Republicans?" by Mike (I'm not Ramsey) Rappaport on the same subject. And this is followed by a post titled "Eric Segall: The Constitution Means What Judges Say it Means," by Mike Ramsey.

I noted in an earlier comment the Legal Theory Blog post on a Summer originalism "Boot Camp" to be held at Georgetown Law. Both Solum and Rappaport will serve as cadre, as will Barnett. The Originalism Blog subsequently post on the "Boot Camp."

Segall frequently posts at Dorf on Law, but not as yet on his article. Perhaps we can expect a post there by Segall where he may respond to Solum's editorial comments. I expect more than a 3-way on this, as perhaps Graber and Gerard might respond with posts at this Blog. And I wouldn't be surprised to see Jack Balkin jump into the fray.

I questioned the reference to "Boot Camp" in an earlier comment. It seems a battlefield may be in the works. It seems that originalists are making an all out effort to publish on the public meanings of various provisions in the Constitution. Non-originalist and historians and linguists may have to respond in a timely fashion as this all seems like a pre-emptive strike. Jack as a proponent of Living Originalism can jump in on both sides.

I assume at least Mark Graber will respond. But will non-originalists unite as do originalists who have significant internal quarrels on the varieties of originalism.

Maybe Joe will get at bat in this game, even thought he often avoids getting into the interpretation/construction squabbles that I sometime foment.
 

Shag is correct that I'm less interested in such "squabbles," especially some of the originalism debates that to me are pretty tedious.

Prof. Levinson's book An Argument Open to All: Reading "The Federalist" in the 21st Century is in my library now; will try to read it. Also, I recently read "Judgment Calls: Principle and Politics in Constitutional Law," finding it overall well written & convincing.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1288146
https://www.youtube.com/watch?v=WvnZbsfJ1_w

Different sides do get different things from history such as found here:

http://theusconstitution.org/text-history

For instance, it cites this brief in part written by Prof. Balkin that uses history to support one side in the Fisher legislation:

http://theusconstitution.org/sites/default/files/briefs/Fisher_v_Texas_II_Merits_Final.pdf
 

Perhaps someone was reading -- see new post "Blind to History."
 

“In An Argument Open to All, renowned legal scholar Sanford Levinson takes a novel approach to what is perhaps America’s most famous political tract. Rather than concern himself with the authors as historical figures, or how The Federalist helps us understand the original intent of the framers of the Constitution, Levinson examines each essay for the political wisdom it can offer us today. In eighty-five short essays, each keyed to a different essay in The Federalist, he considers such questions as whether present generations can rethink their constitutional arrangements; how much effort we should exert to preserve America’s traditional culture; and whether The Federalist’s arguments even suggest the desirability of world government.” — Yale U. Press

http://etseq.law.harvard.edu/2015/11/faculty-book-talk-sanford-levinsons-an-argument-open-to-all-reading-the-federalist-in-the-21st-century-wed-dec-2-at-noon/

 

For those interested in video: https://www.youtube.com/watch?v=J_XKj5vNk-k
 

There is definately a great deal to learn about this topic.
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