The Law Reviews and Reconstruction: An Overly Optimistic World? (Part II)

My article “Optimistic Originalism and the Reconstruction Amendments” engages with two distinct bodies of scholarship – law review commentary on the Reconstruction amendments and recent accounts of the Civil War and Reconstruction by historians.  In my last post, I discussed how to define the gap between how originalists and historians approach the past, especially in light of Heller and Jack Balkin’s Living Originalism.  In this post, I broaden my focus to reflect on legal scholarship on the Reconstruction amendments as a whole, whether self-consciously originalist or not.

If you have ever been to the original Disneyland in Anaheim or the “Magic Kingdom” at Walt Disney World in Orlando, you enter the park to find yourself in a defined area called “Main Street, U.S.A.”  In part, Main Street is a recreation of Walt Disney’s actual hometown of Marceline, Missouri.  I understand Marceline is very small, but in its late nineteenth-century Victorian architecture, it is probably similar to many such Midwestern towns, including the town in Kansas where I grew up.  There are large porches, gables, and turrets.  Of course, it is not a real town.  No one lives there.

Since the late twentieth century, legal scholarship on Reconstruction has pursued a determinedly (and increasingly determined) “optimistic” path, as I term it in the article.  Indeed, this optimistic trend now extends to all three Reconstruction amendments.  There are multiple law review symposia not only with respect to the promises of section one of the Fourteenth Amendment, but the Thirteenth as well.  Likewise, there are some reasonably optimistic articles on the Fifteenth Amendment.

Yet in this somewhat dogged pursuit of optimism about Reconstruction, legal scholarship risks creating a kind of scholarly Disneyland, an idealized recreation of the past.

This is not because legal scholars have entirely ignored the reasons for Reconstruction’s failure to guarantee meaningful rights for African Americans and women, although these reasons are typically left vague in the midst of incredibly detailed discussions of the meaning of, for example, “privileges or immunities.”  It is because these reasons are not treated as related to the Constitution itself.  The failure of Reconstruction gets attributed to the motivations of politicians, the politics and economic developments of the time, especially after President Grant took office in 1869, and a general waning of enthusiasm among northern whites.

I have been increasingly puzzled by the differences between the idealized world created, however inadvertently, by able and energetic legal scholars and the often terrible dilemmas posed during Reconstruction by what I see as clear conflicts among constitutional values – at least, nineteenth-century constitutional values.  These dilemmas are well illustrated in recent studies by historically-minded scholars such as Pamela Brandwein, Laura Edwards, Gregory Downs, Mark Summers, and Cynthia Nicoletti.  One danger is that legal scholars typically concentrate on just a few Republicans such as John Bingham and Jacob Howard.  Thaddeus Stevens, who was actually the leader of House Republicans and Senate leaders such as Lyman Trumbull and William Pitt Fessenden are not much in evidence in the law reviews.

Another related problem which the leading legal historian William Nelson warned of many years ago is reading Reconstruction in light of the issues we care about instead of the issues Republicans in Congress cared about.  I anticipate that a forthcoming work by Mark Graber will speak very directly to this problem.  Perhaps the leading example is that there is virtually nothing in the law review literature about an issue which was perceived at the time as absolutely critical to the entire project of Reconstruction, including the new amendments – the terms of the readmission of the former Confederate states.  In theory, Republicans could have used readmission as an enormous incentive for southern states to combat white violence and the white southern insurgency effectively.  In practice, they confronted a question we mostly choose not to ask.  Put bluntly, should racists have the right to vote?  If the process of denying the right to vote to many whites would serially and seriously violate liberal, republican, and democratic principles, should not the former Confederate states be admitted on an equal basis, at least so long as the accept the results of the Civil War and the legitimacy of the new amendments?  Or so Reconstruction Republicans reasoned.  But this is an issue they debated actively, particularly during the readmission of Georgia, the last state to go through the process.  Downs and Summers in particular point up the importance of this debate and the differing views expressed among Republicans about the prospect of refusing to readmit, as Georgia continued to have serious racial problems (I’m sure many would say those problems continue!).  In the end, Republicans like Trumbull, who Downs refers to as an example of a “peacetime” Republican, did readmit Georgia in 1870.

Here we reach a point that affects optimistic originalist arguments on Reconstruction, notably Michael McConnell’s famous argument that Brown is consistent with the Fourteenth Amendment essentially because of congressional debates that occurred in 1870 and after with respect to what became the 1875 Civil Rights Act.  It is also the case, however, that during this time the readmission of southern states influenced the subsequent course of Reconstruction, arguably including how the amendments were interpreted.  It is often said that through the Constitution Americans work out conflicts that would be regarded as “political” in other countries.  In the context of Reconstruction what this meant was that the views, including the constitutional views, of white Democrats would increasingly be heard.  In the article, I discuss several arguments that were popular among both newly admitted southern Democrats and at least conservative and moderate Republicans.  These arguments combined to limit the optimistic legal content and effect of the Reconstruction amendments.  They included: (1) a continuing commitment to the structure of federalism or “states rights”; (2) the distinction between civil, political, and social rights; (3) the legally dependent status of certain groups of citizens such as women and children; and (4) a continuing commitment to limited (non-centralized) government.  I stress that these commitments were firmly regarded by nearly all as a part of American constitutional law.  In the view of many American citizens, the Reconstruction amendments were not designed to change them.

The question then, is the relationship of these commitments to the optimistic trend in legal scholarship.  I will follow one thread here.  Consider that one seemingly unnoticed similarity between Reconstruction Republicans and some Republicans in the twentieth century was the belief that voting rights were a key part of the solution to protecting African-American legal rights.  This belief was featured not only in the debate on the Fifteenth Amendment, but throughout the entire period of Reconstruction, as more and more Republicans came to believe that African American males deserved the right to vote.  I suggest that Republican Earl Warren shared the belief of John Bingham in the words of Downs that “voting rights [were] the ultimate prize.”  In Reynolds v. Sims Warren provided a rhetoric of voting rights for a new generation that proved immensely influential – the idea that they were “preservative of other basic civil and political rights.”  So in Warren’s world, voting rights came first.  But should we continue to trust the wisdom of Reconstruction Republicans and Warren that the current language of the Constitution is adequate to the challenges voting rights face?  Many accomplished scholars over the years have favored amending the Constitution to create a truly national right to vote.  But as Eric Foner points out in his recent book The Second Founding (a work I should note that is fairly optimistic by the standards I use here), this is the path that Reconstruction Republicans rejected when they adopted the constrained language of the Fifteenth Amendment.  This is the point I try to make in the article – Reconstruction had designed-in limits.

We should question optimistic legal scholarship about Reconstruction.  I respectfully suggest the opposing view is not pessimism but skepticism about the limits of constitutional change without substantial state-building and the related need to improve our understanding of how constitutional change occurs.  Current legal scholarship seems to assume we can uncontroversially transition or quickly time-jump from the world of the mid-nineteenth century to our own.  This has arguably led to an overemphasis on the question of the proper definition of rights rather than how rights can be meaningfully enforced by all three branches of government, Congress in particular.

Furthermore, claims about Reconstruction being a revolution or a second Founding need to be made with caution, especially with respect to claims about the legal effect of the Reconstruction amendments.  However much we might prefer differently, Lincoln and congressional Republican Reconstructors were in an inherently different position than the eighteenth-century “Founders.”  They were amending a prior order, an order that had elements, such as the four I identified above, that were unusually sticky.  Amending is different from founding.  And the congressional Republican founders, unlike the original eighteenth-century versions, did not stick around to see their vision through.  Some of the leading members of the Joint Committee on Reconstruction, for example, were not present for key episodes that occurred in the Grant administration after the readmission of southern states was completed.  Stevens, of course, died in 1868.  Other reconstructors, by our standards mostly able politicos, moved on to other things.  One career none of them pursued was to be associate justice of the Supreme Court.  Moreover, by our standards, they did not provide much of a roadmap for the rights they created.

Finally, I suggest the steady scholarly push to see Reconstruction in an optimistic light has correspondingly dimmed and diminished our vision of the enormous creative legal effort that was required to get the Second Reconstruction off the ground in the mid-twentieth century.  Leaders such as Thurgood Marshall and Martin Luther King, Jr. were not merely encumbered by the accumulated weight of segregation and the unified opposition of southern white officials.  As Marshall later described in his waning years on the Court, they were hobbled by the Constitution itself, including the remnants of the four legal commitments I mentioned above.  We should not lose our sense of the tremendous change brought by the developments of the twentieth century by endorsing an optimistic take on Reconstruction, developments that are in some respects still playing out today.

In my next post, I will discuss the "sequencing argument," one of the main arguments I deploy against optimistic arguments grounded in the theory of original public meaning.