Thursday, June 17, 2021

Kurt Lash and the Canons of Constitutional Law


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

In 1998, when Sandy Levinson and I wrote about the constitutional canon, we identified three basic kinds of canons. The pedagogical canon focuses on materials that to be taught in law schools (or universities). The academic theory canon focuses on materials necessary (or helpful) for debates in constitutional theory. The cultural literacy canon includes materials necessary for citizens to understand the U.S. Constitution’s history and meaning.

As its name implies, Kurt Lash’s The Reconstruction Amendments: The Essential Documents, forms a constitutional canon—one focused on the history and meaning of the 13th, 14th and 15th Amendments. 

This is a significant scholarly achievement, and in this essay I want to focus on this achievement as a proposed canon.

Like all constructors of canons, Lash understood that he could not possibly include everything relevant to his subject. Limitations of time, space, and memory are a central feature of canons: what they exclude is just as important as what they include. As a result, controversies over inclusion and exclusion are central to fights over canons.

Lash explains that he wanted his collection to be both “long enough to be useful for a broad range of writers and researchers but short enough to be useable by that same group.” This remark leads naturally to the questions: usable for what and useful for what? What projects are made more salient, manageable, and visible by the construction of the canon, and what projects are made less salient, manageable, and visible? These, too, are central concerns of canon formation.

Consider Lash’s focus in light of the three kinds of constitutional canons that Levinson and I identified.

Lash’s two-volume collection succeeds admirably as a pedagogical canon. It contains most of the materials that one would need to teach a semester long course on the Reconstruction Amendments. It does not contain everything that one would want to teach—I will say more on this in the discussion of the academic theory canon. Nevertheless, as every casebook author knows, teachers inevitably supplement a core text with their own materials—for example, on the history of women’s equality, an area in which (as I discuss below) the collection is sparser.

Conversely, casebooks also have materials that many teachers won’t assign. That is also true here. For example, the first hundred pages or so of Volume One—which include selections from the Federalist Papers and the Kentucky and Virginia Resolutions—are designed to set the stage for the Reconstruction debates by documenting basic themes of antebellum American federalism. If necessary, one could dispense with them in a seminar if students already had a basic course in Constitutional Law.

It seems fairly clear from Lash’s introduction that the book is not primarily aimed at constructing a cultural literacy canon. Its central audience is not the ordinary citizen. It includes a great deal that citizens really do not need—things that are very much “inside baseball” for constitutional scholars and their debates over interpretation (more on that later). And, as Lash himself notes, the collection excludes a wide range of art and popular literature—selections from slave narratives (including Fredrick Douglass’s), or Harriet Beecher Stowe’s Uncle Tom’s Cabin, for example—that would be helpful for citizens to understand the monumental significance of Reconstruction and its aftermath.

Instead, Lash’s focus is far more directed at the third canon: he wants to produce a collection of materials helpful to academics, lawyers and judges who are interested in theories about the meaning and interpretation of the Reconstruction Amendments.

How successful is the collection in this respect? The answer depends on which constitutional theories, and which constitutional topics of discussion, you have in mind.

Here is a shorthand way of summarizing the collection’s tendencies. It is oriented toward scholars who are

(1) originalist in one form or another;

(2) primarily concerned with issues of slavery, federalism, the incorporation of the Bill of Rights, and the initial constructions of the key clauses in section 1 of the Fourteenth Amendment;

(3) interested in the debates over the Reconstruction Amendments in Congress, the Committee of Fifteen; and where materials are available, in the states themselves;

(4) focused on public debates prior to the adoption and ratification of the amendments but not in the years immediately afterwards; and

(5) interested in the public reception of those debates in key newspapers and political speeches.

Once we put the matter this way, we can see the likely areas of contention over Lash’s construction of the canon.

First, the book focuses on the end of slavery and the creation and construction of civil and political rights for newly freed slaves. It has less to say about the struggles for civil rights by free Blacks during the antebellum era. 

We have just finished a symposium at Balkinization on Kate Masur’s important new book, Until Justice Be Done. Masur shows the role that free African-Americans played in fighting for their own rights. In particular, she explains the important differences between anti-slavery movements and movements for Black civil and political rights. And Masur also shows the influence of Black movements for civil rights on the ideas and concepts that eventually found their way into the Reconstruction Amendments.

Lash does have some of this material. He includes the Liberty Party platform of 1843 and material on Samuel Hoar’s expulsion from South Carolina. But, like most legal historians before Masur’s book, he treats controversies about the rights of free Blacks as an aspect of the fight over slavery. He also leaves out much that would be important to tell the story of the antebellum social movement for Black civil rights, including the Ohio laws discriminating against free Black people, materials on the imprisonment (and sale into slavery) of free Black sailors, and the key case of Elkinson v. Deliesseline (1823). The protection of the rights of free Black citizens of Massachusetts, after all, was the reason why Massachusetts sent Samuel Hoar to South Carolina.

It is hard to blame Lash very much for these omissions. Masur’s book has just been published, and it has opened the eyes of many historians—as evidenced by the reviews in our recent Balkinization symposium. If Lash were to publish a second edition, I am sure he would build on Masur’s insights and edit the materials accordingly.

Nevertheless, this example suggests a second important tendency in the collection. Much of contemporary constitutional theory today concerns social movements. Social movements matter to Lash, but in a limited way. They matter to the extent that they fit into the kind of history that original public meaning originalists care about. To the extent that they do not fit into this kind of history, they are less important.

A good example of the difference this perspective makes is the movement for woman suffrage, which receives only limited treatment in the collection, in part because its views about the Fourteenth Amendment did not win out. Lash includes the Seneca Falls Declaration of 1848 and Victoria Woodhull's memorial, but not all that much else. Susan B. Anthony and Elizabeth Cady Stanton make brief appearances in the collection, but not because they are making constitutional arguments for women’s rights; rather they appear because they are making arguments for the abolition of slavery or because they are opposed to Black men getting the vote when women do not.

A third, and equally fateful choice is Lash’s decision to omit most post-ratification materials, including the Congressional debates leading up to the passage of civil rights acts in 1870, 1871, and 1875. These debates can inform us about contemporary understandings of the legal effect of the new amendments by many of the same political actors who adopted the amendments—although to be sure, there was some turnover in personnel. One might also have included the views of the Grant Administration about how to enforce the Reconstruction Amendments in the South.

Lash has a sixty-page selection of post-ratification materials, including, for example, The Slaughter-House Cases and United States v. Cruikshank. But he does not include much in the way of legal views about the new Amendments by members of Congress, by members of the newly created Justice Department in the Grant Administration, or even by members of the Supreme Court sitting on circuit, who offered some of the earliest judicial constructions of the Reconstruction Amendments.

Again, one can’t include everything, and once you start down this path, it is very hard to know where to stop. It might well require many more volumes, at which point the materials might be more useful to legal historians, but less usable for teaching.

Even so, this decision creates some methodological problems. The most celebrated argument for why Brown v. Board of Education follows from the original public meaning of the Fourteenth Amendment is Michael McConnell’s. But McConnell’s argument depends primarily on debates in Congress that occurred after the ratification of the Fourteenth Amendment. You will not find this evidence in Lash’s two-volume collection.

The post-ratification materials—including the Congressional debates, the early views of the Justice Department and the views of Justices riding circuit—are also important because these materials contain other important information about the construction of the Equal Protection Clause as well as the Fourteenth Amendment’s state action requirement.

Similarly, if one is interested in women’s equality, the relevant materials straddle the period before and after the adoption of the Reconstruction Amendments. Lash appropriately includes the Victoria Woodhull petition for woman suffrage rights, Bradwell v. Illinois and Minor v. Happersett, but he leaves out much else that is necessary to understand why many people thought that the question of women’s rights was open for some time after the ratification of the Fourteenth Amendment.

The exclusion of post-ratification materials is not simply a problem for scholars interested in social movements. It is also a problem for originalists. 

Consider how originalist scholars approach the Founding Era. Originalist scholars often look at post-ratification materials to glean information about original public meanings and contemporary legal understandings.

For example, scholars pay careful attention to the decisions made during the Washington Administration, the early debates over executive branch appointments, the debates over the Jay Treaty, the Pacificus-Helvidius debates of 1793-1794, the debates over the Alien and Sedition Acts, the formation of the 1789 Judiciary Act, decisions made by the First Congress, pre-Marbury cases concerning judicial review, and so on. All of these occur after ratification, but are generally considered part of Founding-era materials. Indeed, depending on how you look at it, it is not really clear when the Founding era ends and post-Founding politics begins.

The same, it seems to me, is equally true of the Reconstruction Era, which, one might think, does not really end until the close of Grant’s Administration, and perhaps after that.

Of course, because 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.

For practical reasons, then, Lash made the decision to stop. But in stopping, he has also made an important methodological choice that is not neutral as among the various approaches to constitutional interpretation. In particular, he has excluded materials that most originalists would think highly relevant to determining original public meaning, original legal meaning, original understanding, and original intention. And, as noted earlier, he has excluded materials that are important to understanding important social movements like the antebellum movement for Black civil rights and the first wave of American feminism.

Put more generally, how we shape the canon can favor some approaches to constitutional interpretation and disfavor others, just as it can favor some kinds of constitutional arguments and disfavor others. Lash’s collection is no exception.

None of this, however, should detract from what is a remarkable scholarly achievement. I have no doubt that this collection will be both useful and usable for scholars, lawyers, law students, and judges for many years to come.

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