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 gmail.com.