Tuesday, June 29, 2021

A Place to Begin: My Response to the Symposium Essays

Guest Blogger

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

Kurt Lash

            My deep and sincere thanks to Jack Balkin for hosting this symposium on “The Reconstruction Amendments: Essential Documents (2 vols.) (Kurt T. Lash, ed.) (University of Chicago Press 2021). Before responding to some of the questions and concerns raised in these remarkable essays, please allow me a moment to note how positively the reviewers responded to the collection: 

      “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.” (Magliocca)

         A “remarkable scholarly achievement.” (Balkin)

     A “splendid collection” and “an invaluable source of material (and insight) for anyone charged with teaching courses on the Constitution” (Levinson)

      “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.” (Rebeiro)

      “[A]n impressive achievement: thorough, textured, and provocative.” (Primus)

      “Canonical Texts” presented in a “masterful two volume set . . .. Lash has produced a single, critical resource for understanding a profound moment in American constitution making—a resource that is long, long overdue. . . . Lash has produced a book that every constitutional scholar and historian needs to own.” (Miller)

      “[An] Unparalleled Reconstruction Political Time Machine” that “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.  . . . [This] wonderful and amazing achievement  . . . will permanently transform the way the Reconstruction amendments are discussed and studied.” (Green)

      “Lash’s volumes curate sources ranging from newspaper articles to public speeches and letters to judicial opinions and congressional debates” [and are an] “indispensable” and “critical resource for anyone who values the historical meaning of this deeply important constitutional text. . . Lash’s work should be seen as a critical resource for both jurists and academics” (Mascott) 

            After ten years of toil, this kind of response is deeply gratifying. 

            Now to the concerns and (light) criticisms. There seem to be two basic concerns: The first involves what is missing from the collection and the second involves the possibility that some day, perhaps fifty years from now, big data analysis will render the collection obsolete. Below, I address both concerns. Before doing so, however, I want to mention what Prof. Green would call “a dog that did not bark”—in this case, a criticism not made. Not a single reviewer found the collection to be misleading or tilted towards a particular interpretive position. Instead, Chris Green notes that he “was struck by Lash’s fairness in including material that cuts against his particular views of the original meaning he thinks the text of the Reconstruction amendments conveyed in context.” There is no higher compliment in historical research and it means a lot to me that someone as well versed in the historical record as Chris would praise the balanced nature of the collection. Although everyone (including me) wishes the collection could have included more, what it does include intentionally reflects a wide array of voices and perspectives. The collection is meant to be equally valuable—essential--to libertarians, progressives and conservatives. It is meant to serve as a common ground for continuing debate.

            Chris characterizes the collection as “the political story of the Reconstruction amendments, rather than a legal or linguistic story.” I accept this characterization if, by political, Chris means the collection tells the story of constitutional politics. If so, then he is very much correct, for the collection is deeply indebted to my law school professor Bruce Ackerman and his numerous works on American constitutional politics. Ackerman’s insights into the importance of public debate and deliberation in the shaping of constitutional possibilities informs this collection from beginning to end. As Darrell Miller’s observes, “the effect of Lash’s selection and arrangement becomes almost dramatic, as figures of Reconstruction history—Frederick Douglass, Lyman Trumbull, John Bingham—alternately embrace or ridicule the ideas of previous entries.   Douglass’s aggressively textualist anti-slavery reading of the Constitution is riveting when read just a few pages after Roger Taney’s extra-textual Dred Scott decision.” This juxtaposition of jarring ideas and arguments is intentional, for the collection seeks to draw the reader into the debates as they occurred and follow the arguments of constitutional politics as they evolved. The collection, in its entirety, aspires to be read.

            Inevitably, a limited collection omits documents or debates of particular importance to one historian or another. These include any number of documents that a larger collection would definitely include. Jack Balkin and Sandy Levinson, for example, refer to the antebellum materials discussed in Kate Masur’s wonderful new book, “Until Justice Be Done: America’s First Civil Rights Movement, From the Revolution to Reconstruction,” which describes state-level civil rights efforts led by black Americans in the decades prior to the Civil War (for which Balkinization hosted an on-line symposium just prior to mine). Masur has identified a wealth of historical material that is essential reading for anyone interested in the antebellum efforts of Black Americans to fight racial discrimination in the northern states. Much of Masur’s book focuses on debates over state law and state-level civil rights reform efforts, whereas my collection focuses on federal law and national-level constitutional reform efforts. The different emphasis lead Masur and I to make different choices. For example, I include “The Rights of Colored Men,” the remarkable 1834 essay on racial equality and the Constitution by the African American abolitionist and President of the first “Convention of Colored Men,” William H. Yates (Vol. 1 p. 134; See also Darrell Miller’s review), while this author and work are unmentioned in Masur’s book. Masur, on the other hand, cites a wealth of documents, which my collection does not include, that involve Black American efforts to dismantle racially discriminatory laws in the northern states. But the closer Masur’s account gets to the Civil War and Reconstruction, the more our works begin to overlap; thus, we both address the debates over Article IV’s Privileges and Immunities Clause, antebellum events like the 1853 National Colored Convention, the writings and speeches of Frederick Douglass, and the eventual debates over the 1866 Civil Rights Act. In other words, I don’t think either of us has omitted anything—we just had different emphasis.

            The most commonly mentioned “omission” involves my decision to end the primary collection with the 1870 ratification of the Fifteenth Amendment (giving Frederick Douglass the last word). Most reviewers concede the reasonableness of this cut-off date, given the goal (and publisher’s insistence) of creating a limited collection of materials. Once one opens the door to post-ratification material, there is no principled stopping point. As Jack Balkin notes, there is “so much potential material between 1870 and 1877—hundreds if not thousands of pages merely in the Congressional debates, for example—it might have required a third, fourth, and fifth volume to include them.” Just so. The cut-off also reflects a view held by most scholars and judges that materials leading up to, and during, the public ratification debates are distinctly more relevant to determining the original public understanding of the text. True, originalist scholars sometimes look to post-ratification materials for insight into the original public meaning (McConnell, for instance). But this tends to occur primarily when the existing ratification-era materials are somehow inadequate. All originalists start by searching for (and hoping to find) framing and ratification period evidence, and this collection provides these researchers a good starting place.

            One final concern involves the potential impact of big data analytical tools like those currently associated with corpus linguistics research. Darrell Miller wonders whether, fifty years from now, advances in data research will result in “the voices that Lash surfaces in his book becom[ing] just a few more coded inputs in a vast, impersonal digital expanse.” Lea Vandervelde ponders whether this collection comes “too late,” now that digitization of historical materials is on the verge of allowing researchers to conduct statistical analysis of “the corpus as a whole.”

            I very much hope that Lea is right. Corpus linguistics research of massive corpora is a new and valuable tool in the originalist toolbox. According to Lawrence Solum, corpus linguistics research is one of three research methodologies that originalist should use and “triangulate,” the other two being an immersive exploration of historical context and a deep investigation of the “constitutional record” (issues relating to framing and ratification). Remarkable work is being done on corpus linguistics research and the development of massive historical corpora at the Corpus Linguistics Project at BYU’s J. Reuben Clark Law School, and the Quill Project hosted by UVU’s Center for Constitutional Studies and Pembroke College Oxford. I strongly support such programs (I have made all of my research materials available to the folks at the Quill Project).

            But while extremely useful, corpus linguistics cannot replace the other two methodologies of legal historical research, much less originalist investigation of constitutional texts. One quick example: Lea Vandervelde tells us that big data investigations of word usage is important because “repetition suggests importance.” Perhaps. But nothing about frequency of usage tells us why the word frequently appears. During the 1866 congressional debates, for example, one finds frequent references to the case Corfield v. Coryell.  This bare statistical fact has led a generation of scholars to assume that Congress must have used Corfield’s analysis of Article IV’s Privileges and Immunities Clause as a guide to drafting the Fourteenth Amendment’s Privileges or Immunities Clause. When one reads the actual speeches and debates, however, it quickly becomes clear that Corfield was frequently mentioned in 1866 because members of Congress vigorously disagreed with one another about the case’s meaning and whether it had anything useful to say about Congress’s power to enforce civil rights in the states, or whether it should serve as a guide to constitutional reform (see, e.g., Vol. 2., pp. 67, 85-87, 102, 121, 125, 626). This historical disagreement could never be gleaned from the mere statistical fact of “repetition.” In short, corpus linguistics is an extremely helpful tool for historical originalist research, but it is only one of several critically important tools. I am sanguine in my belief that this will remain the case even fifty years from now.

            Finally, I am especially pleased that reviewers noted the usefulness of the collection for creating and teaching courses on American Constitutional History and the history of the Thirteenth, Fourteenth and Fifteenth Amendments. As Sandy Levinson points out, the collection is “an invaluable source of material (and insight) for anyone charged with teaching courses on the Constitution, whether to law students, undergraduates, or graduate students,” and that it is “a very solid basis not only for several classes, but even, most certainly, a semester-length seminar, worth of intense discussion about the nature of constitutional law and constitutional theory.” This last year, faculty at Stanford, University of Chicago, and myself have done just that. I believe more will do so in the coming year. To facilitate the development of such courses, I have posted a collection of teaching materials based on the documents in the collection. These materials include a model syllabus, weekly discussion guide and Teachers Manual.

            In conclusion, my sincerest thanks to Jack Balkin and the folks at Balkinization for hosting this symposium, and my deepest gratitude for a group of reviewers who took such time and care to explore the content of the collection (two essays from Sandy Levinson!). The essays illustrate how a deep engagement with the original sources raises as many questions as it answers (far more, no doubt): Were the amendments necessary? (Levinson) Were they impossible without a Civil War? (Primus) Should we expand our list of constitutional “Founders?” (Miller) (the answer to Miller’s question is an emphatic “yes!”) Is this an acceptable “canon” of Constitutional Reconstruction, and what are the alternatives? (Balkin) In fact, the deeper readers go into this collection, the more questions will arise: Did America engage in a 1619 Project style debate between the Founding and Reconstruction and, if so, which side won? Did Madisonian federalism survive the Civil War and, if so, how did it affect constitutional reform? Did theories of natural rights inform the public’s understanding of the Reconstruction Amendments and, if so, in what way? And, most importantly, why on earth is there not a major monument to John Bingham anywhere in the United States?

            When I mentioned to Akhil Amar that I was about to publish what would be the only existing collection of original documents on the framing and ratification of the Reconstruction Amendments, Akhil gave me a wise look and softly replied, “for the moment.” He was right, of course. There will be other collections--other “canons.” This is just the first. It is a place to begin.

Kurt Lash is E. Claiborne Robins Distinguished Chair in Law, The University of Richmond. You can reach him by e-mail at kurtlash2 at


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