Thursday, June 24, 2021

An Unparalleled Reconstruction Political Time Machine

Guest Blogger

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

Christopher Green

Kurt Lash's new collection of documents on the Reconstruction amendments 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. That should include, of course, every judge in the country, a big part of whose job involves the interpretation and application of the Reconstruction amendments. And when those judges have a chance, they should read through the whole thing. In the post-Lash age, seminar papers on the Reconstruction amendments will be orders of magnitude easier to write and debates on their meaning far easier to conduct.

The collection is pretty big, both in its 8½-by-11 page size and in its total length. By my rough count, the two volumes have about a thousand words a page, and about 1250 total pages, for about a million-and-a-quarter words in all. Almost all of that mass consists of the original documents; all together, Lash’s wonderfully-concise introductions take up only about 40 pages, about the size of a big law review article these days. Still, even these million-and-a-quarter words do not come close to exhausting the relevant material that illuminates the intellectual world of the Reconstruction amendments.

The most valuable parts of the Lash collection are his materials on the ratification debates, which he had to assemble state by state. While the Cincinnati Commercial collection of speeches from the campaign of 1866 covers a lot of relevant ground, it is only a small part of Lash’s material on the Fourteenth Amendment’s ratification. Most states’ governors gave extensive descriptions of the amendment in presenting it to their legislatures to consider ratification, and pulling all of these statements together was no mean feat. By far, the best single collection of Fourteenth Amendment ratification debates is that from Pennsylvania during January and February 1867, and I am somewhat amazed not to have encountered it before, though in looking for earlier references to it, I have found that Horace Flack and Earl Maltz’s books each mentioned it.  Lash devotes about 10 of his pages to this debate, longer than any other ratification document, but even that amounts to only 5% of the discussion in the Pennsylvania legislature. The entire Pennsylvania Fourteenth Amendment debate in the original Legislative Record—about 100 densely-printed Congressional-Globe-style pages with about 2000 words a page—is well worth studying.

The Pennsylvania material, though, is just the biggest trove of material that I had somehow missed in my earlier interpretive canvasses of Reconstruction. Hundreds or thousands of valuable new-to-me details are sprinkled throughout the collection. Even for material I had known well, like the 1866 speeches from the Congressional Globe, it is very nice to have it in more accessible, readable format. A thousand words per page is a lot easier on the eyes than two thousand. This difference also marks an improvement in Lash’s materials over the much-more-densely-printed Founders’ Constitution collection.

Summarizing the most interesting details from the collection would be a hopeless task, but I was particularly struck by two types of details. First, there is a lot of new material regarding the “loyal denominator” issue (see here and here): whether the former Confederate states were to be included in the Article V total of states of which three fourths were required to ratify an amendment, or whether (as I think) only three fourths of the states represented in Congress were required, because rebel states’ Article V naysaying power, like their Article I right to be represented, was suspended when they rebelled, and remained suspended until Congress declared that the war was over as a legal matter. Second, I 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. It would be quite tedious indeed to describe all the places where I found material that I hope to deploy against Lash sometime in a debate, but there were enough of them to make Lash’s scholarly candor and thoroughness abundantly clear to me.

The problem of selecting what to include might be compared to Peter Jackson’s conundrum in deciding what to include in his Lord of the Rings movies and what to cut. At one point in his commentaries on the movies, Jackson says that the governing criterion was always “Frodo and the Ring”: would an episode tell us more about these two elements of the book, or not? So the visit to Tom Bombadil is left out, the Scouring of the Shire reduced to a bit of Frodo’s vision in the Mirror of Galadreiel, and the Mouth of Sauron reserved for the extended edition.

What sorts of things might be included in an Extended Edition—or a Very Greatly Extended Edition—of Lash’s collection? We might call this a “next documents in” list.  What just missed the cut? The most amazing thing about the collection is that, as lengthy as the collection is, and as consistently valuable as the documents are, it is easy to image a collection four times as large just by adding three congressional debates: a million words from the 1862 debate on due-process objections to the Second Confiscation Act (see here for my canvass) and about a million-and-a-half words each from the 1871 debate on the Equal-Protection basis for the Ku Klux Klan Act of 1871 (see here) and the 1872-to-1875 debates on the Privileges-or-Immunities-Clause basis for the Civil Rights Act of 1875 (see here and here). These three debates illuminate the three key provisions of Section One of the Fourteenth Amendment in much more elaborate, textually-focused detail than does the 1866 discussion in Congress. Lash does include two small pieces of subsequent-interpretation debate: the 1869 effort by a few important Republicans to secure nationwide black voting under the Fourteenth Amendment, and the 1870 re-adoption and partial extension to non-citizens of the Civil Rights Act of 1866. But except for a single justly-famous speech from John Bingham from March 1871, the collection ends before the 1871 Ku Klux debates begin. I hasten to add that I cannot fault Lash (or his publishers) for the decision to publish only two massive volumes instead of eight. Because this material is all from the Congressional Globe and Congressional Record, it is already relatively easy to access in a single place, and it really is a mountain of evidence. An arbitrary stopping point has to be assigned, and stopping just before getting into the elephantine mass of 1871 and 1872 material makes a lot of sense. 

It is important, though, to know that these mountains are there. The inherently-incomplete nature of a collection like this makes it very difficult for non-specialists to make or to assess “Silver Blaze” arguments. In “The Adventure of Silver Blaze,” Holmes infers from the fact that a dog did not bark that an intruder was not a stranger. This sort of consideration can be very important. For instance, to take an instance that readers of the Lash collection can verify, during the extensive 1869 discussion of voting rights between the Fourteenth and Fifteenth Amendments, no one invoked the Equal Protection Clause as a basis for voting rights. This seems to me a very good reason to think that the Privileges or Immunities Clause, not the Equal Protection Clause, was the general antidiscrimination requirement in Section One. We have to be confident, though, that the relevant dogs really did not bark. The fact that an argument does not appear in Lash’s collection is a very strong reason to think that it was not made at all during Reconstruction, but the inference is, alas, not absolutely airtight. 

At a much more retail level, the three bits from the 1866 discussions that I would put at the top of my “next documents in” list are (a) President Johnson’s full veto of the Civil Rights Act of 1866, especially its reverse-discrimination charge that the act itself represented improper discrimination in favor of the freedmen, (b) Lyman Trumbull’s response to that veto message, especially his response to Johnson’s reverse-discrimination charge and his discussion of how the Civil Rights Act related to the rights of citizens of the United States, and (c) Jacob Howard’s handwritten notes for his introduction of the Fourteenth Amendment to the Senate, which supply important evidence about how Howard understood the relationship of Corfield v. Coryell’s list of rights that “belong, of right, to the citizens of all free governments” to the rights explicitly enumerated in the federal Constitution.

If I were to include a single additional case from a court, I would include one from a federal trial court rather than the Supreme Court: future Justice William Woods’s United States v. Hall opinion from the Southern District of Alabama in 1871, which claimed that constitutionally-enumerated rights like the freedom of speech were included within the Corfield standard. Besides this, it would have been nice to see Senator Matthew Hale Carpenter’s January 1872 argument for Myra Bradwell’s Fourteenth Amendment right to practice law alongside the two very different rejections of that argument by Justices Miller and Bradley. Carpenter’s argument gives us the best clue what Chief Justice Chase’s dissent would have looked like had he been healthy enough to deliver one.  The temporal scope of Lash’s collection unfortunately leaves out Carpenter entirely, other than a brief note that he presented argument in Ex Parte McCardle.  While Carpenter was not part of the political story of the Reconstruction amendments’ adoption—he entered the Senate in 1869, just after the Fifteenth Amendment was adopted—he was the most accomplished legal mind to consider their earliest interpretive issues in detail, especially those related to the Privileges or Immunities Clause. Besides his argument in Bradwell, his report the same month for the Senate Judiciary Committee rejecting women’s voting rights and his speeches in Congress during the 1872 debate on civil rights legislation are all exceptionally clear and legally well-informed; while he is of course not infallible, all of his writings repay close study.

A great many court cases could have been included if the general legal nature of the Civil War and Reconstruction were to be canvassed in the collection. Lash’s collection includes Ex Parte Milligan, Ex Parte McCardle, and Texas v. White, but there are lots of others. The next two most important are probably the Prize Cases of 1863, approving Lincoln’s unilateral imposition of a blockade at the beginning of the war before Congress could meet, and Stewart v. Kahn of 1871, which in approving a statute tolling state statutes of limitation during the war discussed Congress’s jus post bellum war power to require conditions of the South as part of its surrender. See also here at 192 for a list of several others.

Returning to the Tolkein-adaptation analogy, it seems that Lash’s “Frodo and the Ring”—that is, the story he tells most comprehensively, even if it means leaving other stories more incomplete—is the political story of the Reconstruction amendments, rather than a legal or linguistic story. That political story can begin, as Lash’s materials do, with the American founding’s political break with England. Lash’s materials give satisfyingly-deep treatment to the nature of American federalism, whose transformation during Reconstruction was the focus and his materials from Reconstruction make clear which of course got the bulk of the political attention in the at the time the Reconstruction amendments were adopted.  In recapturing the political environment of these arguments, there is no substitute for including their extended context, which means relatively long excerpts from documents. The collection gives its documents enough space to convey a sense of the scope of their arguments, rather than picking out which paragraphs seem most important to the editor and demanding readers’ trust. If the unit of currency for such a political collection is the full essay, though, a legally-focused volume might instead consist of paragraphs, and a linguistic history might be only a collection of sentences.

A more complete legal story of the amendments would also require a much longer time frame. Consider the three big clauses of Section One of the Fourteenth Amendment, for instance. A proper legal history of due process would begin at least as far back as the “law of the land” provision in Magna Charta paragraph 39 in 1215 and the incorporation of “due process of law” into English statutes beginning in 1354, and would have to confront how English legal thinkers like Edward Coke, Matthew Hale, and William Blackstone, as well as American state constitutional law (see here and here), dealt with those ideas. A proper legal history of the notions of citizenship in the background of the Fourteenth Amendment, though it might not have to go back as far as the expansion of Roman citizenship to the Italian peninsula following the Social War of 91 to 87 B.C., would at least consider its development in early seventeenth-century cases like Calvin’s Case and Baggs’s Case, and would look at how state-constitutional disputes were conducted in terms of citizenship and the extent to which it entailed equality in civil or political rights. The legal story of the government’s responsibility to provide the law to its subjects would touch on Magna Charta paragraph 40’s requirement that the king not “sell … deny or delay right or justice,” the controversies regarding James II’s use and abuse of the dispensing power, Blackstone’s explanation of the “remedial part of the law,” i.e., “what we mean properly, when we speak of the protection of the law,” and Marbury v. Madison’s definition of the “very essence of civil liberty” as “the right of every individual to claim the protection of the laws, whenever he receives an injury.”  For the most part, these bits of distant legal background are left out of Lash’s collection unless they are quoted by others.

We might illustrate the Lash collection’s political as opposed to legal focus by looking at what to include from James Madison and Justice Joseph Story. Twenty pages of Lash’s collection are devoted to Madison’s Report of 1800, explaining at length his theory of federalism and defending the Kentucky and Virginia Resolves of 1798 and 1799, and sixteen pages to Story’s discussion of the nature of the Constitution in his Commentaries on the Constitution. These inclusions are eminently defensible, given the extent of these materials’ influence on how political actors saw themselves during Reconstruction. But Madison’s discussion of equal citizenship in his Memorial and Remonstrance Against Religious Assessments of 1785, which complained that a religious assessment “degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority,” is left out, as is his discussion in Federalist 10 of the way in which an extended republic might make it less likely that factions would undermine “the public good and the rights of other citizens.” These particular bits from Madison, to be sure, had lesser political influence on later debates than did his Report of 1800, justifying a choice to leave them out if our focus is political. The conceptual similarity to the Fourteenth Amendment’s idea of a continent-wide equal citizenship makes them important, however, for a legal history of its concepts. Likewise, Story’s expositions of due process (“the right of trial according to the process and proceedings of the common law”) and the Article IV comity clause  (“all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances”) were important background to the legal concepts expressed in the text of the Fourteenth Amendment in a way that Story’s discussion of the general antebellum nature of the federal union was not.

Besides a political and legal histories, a third way to tell the story of the Reconstruction amendments would be linguistic or semantic, canvassing how its precise words were used in various contexts. This sort of endeavor would require a very different kind of book. An electronically-searchable version of Lash’s materials is, of course, a great place to start, but a truly comprehensive look at the relevant parts of the English language during Reconstruction, and especially the language of the law at that time, remains to be written. As digital databases proliferate, this sort of book is certainly not far off.

Of course, none of these suggestions for additional material that might usefully be consulted outside Lash’s collection, or for different books that need to be written, should take anything away from what a wonderful and amazing achievement Lash’s collection is. They will permanently transform the way the Reconstruction amendments are discussed and studied. No matter how much they already know (or think they know) about the amendments, readers who spend a few weeks treating the collection as a Reconstruction time machine will return to present day with a far better understanding of the amendments’ origins and how to interpret and apply them.

Christopher Green (, @crgreen24601) is the Jamie L. Whitten Chair in Law and Government and the University of Mississippi School of Law.


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