Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What follows is a two-part review of Kurt Lash’s truly important collection of materials on “the Reconstruction Amendments” just published by the University of Chicago Press. Both Lash and the Press have performed a genuine service to anyone interested in American constitutional history by bringing out these handsomely produced two volumes. They will be an invaluable source of material (and insight) for anyone charged with teaching courses on the Constitution, whether to law students, undergraduates, or graduate students, or, for that matter, for any general readers with the patience to read the often fascinating debates over the nature of the Union following Appomattox and, save for some of the debates about the 13th Amendment, the death of Abraham Lincoln. One can only hope, as with its prototype, the five-volume Founders’ Constitution published thirty years also by the University of Chicago Press, it will quickly be taken up by the Liberty Fund, published in a far more affordable, but still beautifully produced, edition and, very importantly in this day and age, made available for free to anyone who wishes to read online or to print out particular excerpts. It would be a real shame if this splendid collection gets buried in university libraries or even the offices of those relatively few academics willing to pay the $125 price. So Lash and the Press deserve kudos from all of us for the great time and effort put into this project.
But, for better or worse, the purpose of a review is at least as much to express some reservations as to praise. The praise is sincere, but so are some of my reservations. In this first posting, I shall focus on some of the materials that are not included in the collection. This touches on one of the central topics of Jack’s post, which is the reality that in his own way Lash is trying to create a canon for the future study of the Reconstruction Amendments. Canons are both complicated and, especially in recent years, inevitably controversial. On occasion there is objection to what gets included; here, the issue is far more what is absent.
Some of these reservations may be dismissed, perhaps justly, as simply evidence of the fact that hard choices had to be made with regard to the materials, and perhaps I would have made some different ones. Lash notes in his “Introduction to the Collection” that he had the joint goals of providing something “long enough to be useful for a broad range of writers and researchers but short enough to be usable by that same group.” Surely this is understandable. As some readers are well aware, Balkin and I are two of the co-editors of a casebook, Processes of Constitutional Decisionmaking. Working with Jack on it has been perhaps the greatest joy of my professional life; that does not prevent us, though, from fairly constantly arguing about what should go into or, more to the point, be cut from the forthcoming new editions. Each new edition must inevitably include a number of recent Supreme Court decisions or other noteworthy contemporary exercises in “constitutional decisionmaking.” At the same time, though, I almost always wish to add more material, almost all of it historical. Were it up to me, for example, all students would be informed about the rich history of Dorr’s rebellion in Rhode Island in the 1840’s and what it teaches about “popular constitutionalism” as a social movement and “popular sovereignty” as a foundational political theory. It is not necessarily the case that Jack disagrees on abstract grounds; instead, he is far more attentive than I am to the pleas of our publisher (and, it should be said, at least some teachers who use the book) to reduce its current doorstopper size in part by recognizing that even its most enthusiastic users do not have the time to teach everything we might wish to include.
I’m confident that Lash himself, given complete freedom and indifference to the market, might easily have compiled a third (or even fourth) volume. One doesn’t have to be a devotee of law and economics in order to recognize the reality that we are in fact forced to live within restraints generated by the scarcity of resources. To be sure, one suspects that all of the material Lash brings to our attention is now available on the Internet; as he notes, he was able to call up the digitized records of many newspapers of the time, from which he has culled valuable excerpts. But that does not at all affect the reality that most of us simply don’t have the time, even if we have the inclination, to spend vast amounts of time and energy ferreting it all out, even on the Internet. So one is grateful that Lash has done a lot of that work for us.
Still, I want to address the implications of the omission of certain materials. The book begins with a plethora of Federalist essays focusing on federalism, reflecting Lash’s plausible belief that a major issue throughout the debates over Reconstruction was the degree to which the American political system would become significantly more “consolidated”—to use the word thrown out as a deal-breaker by many anti-Federalist critics of the Constitution during the initial ratification debates. It is certainly helpful to be reminded of the debates going back to 1787 and continuing thereafter about the nature of the Union and of states within it. And this means the welcome presence of the Kentucky and Virginia Resolutions as well as John C. Calhoun in addition to those setting out a more nationalist vision of the Constitution. But why not include Chisholm v. Georgia, in which four of the five justices unequivocally and, I think altogether rightly, concluded that Georgia was not a sovereign state—as John Jay and James Wilson emphasized, only “the people,” treated as a national collectivity, were sovereign—and therefore subject to the jurisdiction of a federal court? True, the Eleventh Amendment overrode the specifics of that case, but it is tendentious to view that fact as evidence that the Court either had been mistaken or, as much to the point, that the Eleventh Amendment is anything more than a minor technical adjustment to the law of federal jurisdiction. No concept is more important—or, as Don Herzog has suggested, more elusive—than “sovereignty,” a word central to any of the debates about federalism and, of course, to the ultimate ostensible trump card by those who take state sovereignty fully seriously, secession. As I have written elsewhere, it is a total mystery why John Marshall chose to acknowledge Maryland as a “sovereign state” at the outset of McCulloch v. Maryland, given that the case as a whole stands for the proposition that in no serious sense is the state a classic sovereign with unlimitable power. Students should realize that “state sovereignty” was viewed as a basically nonsensical notion by our first Chief Justice and, in James Wilson, by probably the leading American analyst of law as well as one of the most important figures at the Philadelphia Convention and then thereafter in the Pennsylvania ratifying convention.
Moreover, and perhaps more importantly, Lash, who recognizes that debates about slavery and reconstruction were also inevitably debates about race and white supremacy, could have done more to note that the Fourteenth Amendment especially was at least as much about the latter as the former. Kate Masur’s new book Until Justice Be Done makes it altogether clear that the “first American civil rights movement” focused at least as much on the mistreatment of “free Blacks” as on eliminating the undoubtedly even worse evils of chattel slavery. One result of the common focus on Frederick Douglass as the voice of American Blacks both prior to, and after, the War is, frankly, to underplay the extent that most Black groups in the North, though certainly anti-slavery, also devoted great energies to objecting to the discrimination and humiliations visited upon them in non-slave states throughout the Union. So as helpful as it is that students easily be able to find relevant pages from Prigg v. Pennsylvania or Dred Scott, it would also have been helpful to include some relevant cases from northern states, such as Roberts v. City of Boston, upholding racial segregation in the Athens of the New World, or statutes from a plethora of “free states’ designed to preventing immigration and settlement by free Blacks from other states. Indeed, one might mull over several laws, Northern as well as. Southern, prohibiting free Blacks from owning guns. This fact underscores the de facto syllogism in Dred Scott that a) American citizens have a right to bear arms; b) Blacks have no such right; therefore c) Blacks cannot be citizens. In his decision, of course, Taney makes effective use of the many discriminatory laws passed by Northern states, including Massachusetts and Connecticut, over a wide variety of issues.
It is commendable that Lash included Thomas Jefferson’s truly racist Inquiry 14 from his Notes on the State of Virginia, as well as some (though not very much) material from those defending the full humanity and capacities of Blacks. But I would also have included Federalist 2, in which Publius (John Jay) makes the empirically preposterous argument that the “people” of the United States are in almost all important respects remarkably homogeneous (including, he said, speaking the same language). Jay undoubtedly knew better; the Constitution had almost immediately been translated into Dutch in order to be read by the Dutch speakers who had originally settled New Amsterdam and now tended to live in the Hudson Valley just north of Manhattan. (It had also been translated into German for the roughly one-third of Pennsylvanians, who to Benjamin Franklin’s dismay, continued to speak the language of the country from which they came to the New World.) So why was it so important to Jay to insist on homogeneity, which meant, in addition, that he simply ignored the fact that New York continued in 1787 to be very much a slave state. It would abolish slavery only in 1827. Had he recognized such obvious realities, might it have appeared fatuous to argue, as was the purpose of The Federalist, that we could successfully coalesce into a single country far larger than any single country in Europe?
Surely, one of the great themes of Reconstruction, both then and now, is the degree to which “we the people” can genuinely come to terms with our remarkable heterogeneity. It might be illuminating for students to realize that Abraham Lincoln’s undoubted revulsion to slavery did not mean at all that he shared, say, Wendell Phillips’s equal revulsion to racial discrimination per se, especially regarding racial intermarriage. Perhaps a selection from one of the Lincoln-Douglas debates would have been helpful in this regard, not to mention Lincoln’s truly awful address in 1862 to a collection of Black leaders from the District of Columbia in which Lincoln attempted to impress on them the inability of Blacks and whites truly to live as one and, therefore, that their patriotic duty was to move to Panama (or somewhere else out of the United States).
I would have been inclined to include Frederick Douglass monumental speech on the Fourth of July in addition to Douglass’s speech that is included attempting to demonstrate that the Constitution, correctly understood was anti-slavery instead of the “covenant with Death” pronounced by his former mentor William Lloyd Garrison or the pro-slavery document enunciated by Taney in Dred Scott. Douglass, of course, was a devoted opponent of colonization movements, which Lincoln warmly supported. But, and students would not easily realize this, there were Black supporters of emigration and resettlement in Mexico (which had outlawed slavery immediately upon revolting against the Spanish Empire); Haiti (the first Black Republic, totally unrecognized by any American president until Abraham Lincoln); Canada (which, thanks to the heroic Guy Carlton, received many former enslaved persons who, under the terms of the Treaty of Paris, were supposed to have been returned to their owners, including George Washington); or Liberia. Perhaps Lash will reply that these are mere factoids, of no interest to lawyers, and perhaps he is even right. But that could speak to the insularity of “thinking like a lawyer” and designing a canon directed primarily at lawyers.
Indeed, I would have been tempted to include in the runup to the Thirteenth Amendment materials from 18th and early 19th American thought defining “slavery” as all illegitimate domination and not only the particular form instantiated within chattel slavery. Why, after all, did some of our “patriot heroes” in 1776 believe they were correct in suggesting that the British wanted to “enslave” the hitherto loyal white colonists? Moreover, it is manifestly incorrect to declare, as did the New York Times on January 15, 1865 (Part 2, Document 30), that “Slavery Declared Forever Abolished.” After all, the text of the Thirteenth Amendment flatly contradicts that confident assertion insofar as it appears to license slavery (and involuntary servitude) as punishment for crimes. But even if one says that “chattel slavery” was “forever abolished,” it is entirely self-serving to believe that “chattel slavery” and “slavery” more generally are completely overlapping sets. “Wage slavery” or the exploitation attached to sharecropping remained all too alive and well, often protected by the Supreme Court through the rubric of “freedom of contract.”
But enough of caviling over inevitably tough decisions that had to be made about the allocation of scarce space in the face of way too many worthwhile candidates for inclusion. I want to turn instead to Lash’s assertion in his Introduction that “the collection is meant to assist lawyers, judges, and legal scholars, in understanding a moment of legal change.” Let me assert that I seriously doubt that any practicing lawyers or judges will be very interested—or perhaps interested at all—in the copious materials about the Thirteenth and Fifteenth Amendments. The reasons are twofold: First, these amendments are rarely litigated, in part for reasons I shall discuss in Part II with regard to the Fifteenth Amendment. They are, basically, historical artifacts rather than central parts of our law as most lawyers and judges define “American constitutional law.” Were, as in the wonderful movie Yesterday, where a cosmic event caused almost everyone to forget the Beatles and their music, we were to wake up with constitutions that did not include either the Thirteenth or Fifteenth Amendments and forgot they ever existed, no serious contemporary lawyer believes that anything would truly have been lost.
Every modern lawyer would quickly argue that “slavery” is forbidden by the Due Process or Privileges or Immunities Clause of the Fourteenth Amendment or by the Ninth Amendment. We could even argue, altogether plausibly, that the provision barring titles of nobility could be interpreted as prohibiting legal recognition of the title (and reality) of “master” regarding enslaved persons. Indeed, Lash helpfully includes excerpts from Lysander Spooner and Joel Tiffany (as well as Douglass’s speech) making the case that the Constitution, correctly understood, was already anti-slavery. And every modern lawyer would argue that limitation of the suffrage on grounds of sex or gender clearly violates the Equal Protection Clause or the Republican Form of Government Clause.
One can be glad that both amendments, as well as the 19th Amendment, are in the Constitution, but not because they are truly important to the handiwork of practicing lawyers or those lawyers who become judges. For most lawyers and all “inferior judges” not privileged to serve on the United States Supreme Court, the historical materials are basically irrelevant. Decided cases—precedents--supply the “doctrines” that lawyers are supposed to manipulate and “inferior judges” apply. Indeed, one can say that as well about most of the current justices. When Clarence Thomas, for example, suggested, altogether reasonably, in McDonald, dealing with the incorporation of the Second Amendment into the rights protected by the Fourteenth Amendment, that the Court should consider it in the context of the “Privileges or Immunities Clause” of the Fourteenth Amendment, he was ridiculed by no less than his erstwhile ally Antonin Scalia. He dismissed such a notion as merely “academic” or “professorial” in the most pejorative possible senses of those terms. A full century of incorporationist decisions had avoided any recognition of the Privileges or Immunities Clause, so the lesson Scalia drew was to let sleeping dogs (or clauses) lie, whatever the merits to many historians of Thomas’s argument. Legal scholars seeking to understand our often tormented past will undoubtedly benefit from the collection, but surely not because they/we will be drawing on the materials for briefs we might be writing before any “inferior” court. Far more important, for better or worse, is the purported wisdom of recent cases of the Supreme Court which themselves are increasingly exercises in case-crunching rather than serious examinations of the historical record underlying the text of the Constitution. I suspect that Lash laments this fact, but I’d be truly surprised if he denies that it is a fact.
He might particularly lament it, though, because it is clear, both from other work and from the Introduction to this one, that he is an “originalist” who believes that history is not only interesting, which I certainly agree it is—thus my genuine praise for his handiwork—but also determinative in providing legal meaning, which I deny. But Lash is eager to provide us with sufficient materials that allow us to discern the “original public meaning” of these three amendments not only because that is historically interesting, but also because that meaning, as “a profoundly public act,” is said to “bind public officials precisely because they embody the considered judgment of the sovereign people.” Thus, Lash asserts, “it is for this reason that lawyers and judges, since the opening days of the Republic have sought to determine and enforce that understanding of the text shared by the public who engaged in the extraordinary effort to amend the Constitution” (p. xi). I don’t want to say there is no evidence for this assertion; I do, though, want to say that it is countered by at least equal evidence that from the beginning, eminent judges and lawyers have often proved notably indifferent to discerning an “understanding of the text shared by the public.” Whatever else Marshall thought he was doing in McCulloch v. Maryland, a case substantially excerpted by Lash, he took care to remind us of the essential point that a Constitution, if it is “to endure,” must be “adapted to the various crises of human affairs.” Perhaps, of course, that was the original understanding—just read Federalist 41` if one is tempted to disagree—but it makes hash of what has come to be understood by most, even if not all, of the devotees of originalism as its central project, which is, again citing Scalia, to celebrate a dead Constitution. (It would turn this already long review into a full-scale article to note as well the problems contained within the reference to the “considered judgment of the sovereign people,” given that literally most of these people were denied any opportunity to participate, other than as supplicants, in the decisionmaking process.)
So I can’t help but wonder what devoted originalists, assuming we know what that might entail, will make of the extremely valuable materials that Lash presents with regard to the Fifteenth Amendment. As noted, the Fifteenth Amendment has played a relatively insubstantial role in our actual doctrinal history, as is the case even more so with the Nineteenth Amendment guaranteeing women’s suffrage. There are at least a smattering of cases involving the former; there are, basically, no important cases testing the meaning of the latter. Constitutional litigation involving women’s rights has depended almost exclusively on readings of the Fourteenth Amendment (as well, of course, as federal statutes passed under the authority of the Commerce Clause). To be sure, that raises some problems for at least some originalists inasmuch as most supporters of the Amendment certainly didn’t appear to view it as providing any succor for women. Abigail Adams’s plea to “remember the Ladies” was basically rejected yet one more time, which is a major reason, as Lash’s documents reveal, that proponents of women’s suffrage and broader women’s rights opposed the Amendment. But, of course, no one seriously expects any originalist today to agree with Justice Scalia suggestion that any decision upholding women’s rights as a constitutional matter should in effect be treated as illegitimate and be overruled. “Faint-hearted” originalism will surely win the day, as one might suspect would have been true for Scalia as well had anyone suggested overruling Frontiero or Hogan. And, of course, I have no problem with that at all. I simply wonder why its proponents continue to call themselves “originalists” instead of (at least) Jack Balkin-like “living originalists.”