For the Symposium on Kurt Lash, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.).
Collections
of important historical documents have long held value for historians, legal
scholars, teachers, and American citizens of all stripes. Henry Steele Commager’s Documents of
American History was first published in 1934 and has reached its tenth
edition. In this century, Bruce
Frohnen’s, The American Republic: Primary Sources (2002), and American
Nation: Primary Sources (2009), provide two volumes of documents covering American
history up to World War II. Now comes
Kurt T. Lash’s, The Reconstruction Amendments:
The Essential Documents (2021), whose documents explain, as its name
suggests, the fundamental constitutional changes wrought by the Civil War. My post will catalog the place within
originalist scholarship and theory that Lash’s and other collections should
continue to hold.
Early
on in the evolution of originalist theory and practice, collections of primary
source documents were one of the key tools of originalist scholarship on the
Constitution’s meaning in addition, of course, to primary source documents
themselves. These collections were
valuable to early originalist scholars for two key reasons. First, the collections represented the expert
editor’s judgment that these were the most important historical documents
relevant to American history or a facet of that history. Second, the collections contained indices to
direct scholars to particular documents and passages most relevant to the
scholar’s inquiry.
One
thing one can say for certain about originalist theory is that it has changed
significantly during the past forty years.
As originalist theory has developed more recently, it contains a number
of distinct and mutually enriching techniques of historical research to
identify the constitutional text’s public meaning at the time of
ratification. Originalist have
identified five analytically distinct research techniques that contribute to
ascertaining the text’s original meaning.
These different techniques were the product of many causes, including
originalism’s theoretical development and the constituent components of
original public meaning.
A
key benefit of this multi-pronged approach is to utilize a variety of different
mechanisms to provide as much support for uncovering, and the highest level of
confidence in, the original meaning. This
occurs when all of the techniques support the same original meaning. A second valuable product of this
multi-pronged approach is that it also signals when scholars should not
have confidence in a result. When some
of the techniques point to an original meaning, though they do so weakly, or
when one or two of the other techniques do not support that conclusion or push
away from it, then a scholar cannot be confident in his conclusion. Third, originalists will also be able to say
with a high degree of confidence when there is no determinate original
meaning. This could occur if each of the
techniques fails to identify a determinate meaning, or if some techniques
strongly push against the others’ conclusions.
Collections like The Reconstruction Amendments will be valuable to some of these techniques and not to others. Below I describe five techniques employed and identified by originalist scholars to ascertain the Constitution’s meaning, and whether and how Lash’s collection will assist those techniques. (My catalog of techniques overlaps with but is different from Larry Solum’s methods identified in Originalist Methodology and Triangulating Public Meaning.) Then, I briefly summarize the place of such collections in constitutional construction.
The
historically first technique employed by originalists was studying the
constitutional record. You can think of
this as standard lawyerly legislative history.
This was the primary method to identify constitutional meaning utilized
by early originalist scholars. It
treated recovery of the Constitution’s meaning as a traditional legal inquiry
into the meaning of a promulgated text, like a statute. Raoul Berger’s Government by Judiciary,
for instance, focused on the give-and-take in the legislative process that
culminated in the Fourteenth Amendment, which he placed within the context of
the Amendment’s broader historical background, to uncover the Amendment’s “legislative
intention.” Studying the constitutional
record continues to be very popular today.
A more recent example is Donald Drakeman’s thorough argument for the original
meaning of the Establishment Clause in Church, State, and Original Intent.
Collections
like Lash’s are valuable to this method of recovering the original meaning. Lash spent years identifying documents that
present the background to the Reconstruction Amendments, along with important selections
from congressional and ratification debates.
Lawyers trying to tell the story of the legislative history and therefore
the meaning of the Fourteenth Amendment, like Berger, would find much of that
story told in The Reconstruction Amendments.
Linguistic
intuition is a second technique. This
technique uses the linguistic intuitions of an American English speaker to
understand the Constitution’s text. The
Constitution was written in English, and at least some, and perhaps much of the
Constitution’s meaning remains accessible to current American English
linguistic intuitions. Nealy all
scholars agree, for instance, that the constitutional requirement of “two
Senators from each State” is accessible to current American English speakers. Linguistic intuition is limited in its
usefulness, however, because of linguistic drift that occurs in natural
languages, like English, over time.
Words that had one meaning evolve unexpectedly into a different
meaning. This produces false-positives,
where a modern American English speaker will (correctly) understand that a word
has a (modern) meaning, but that understanding will itself hide the original
meaning from view.
The Reconstruction Amendments is valuable to the
technique of linguistic intuition. Collections
like Lash’s can check, and dispel or confirm, an interpreter’s linguistic
intuitions about the Constitution’s meaning.
For example, today’s linguistic intuitions would lead one to think that
the phrase “equal protection of the laws” meant that a state’s laws must treat
people substantively equally. In fact,
the Equal
Protection Clause required states to affirmatively protect all persons
and their property from violence and to enforce their legal rights in the
state’s court system.
A
third technique is immersion. Immersion
occurs when a scholar becomes so well acquainted with the linguistic practice
and historical context surrounding the target of research that the scholar is
able understand language similar to a period native speaker of the language. Professor Lash’s own scholarship on the
Reconstruction Amendments reflects his immersion. As shown through The
Reconstruction Amendments, books, and articles, Professor Lash has
immersed himself in the linguistic practices and history of America leading up
to and during the Reconstruction era.
This has allowed Professor Lash to articulate and defend new, coherent
interpretations of various aspects of the Fourteenth Amendment from particular constitutional
meanings, to clause meaning,
to incorporation.
The Reconstruction Amendments will be of some, modest value to immersion. The collection provides a body of documents
to read, through which one may become more adept at the linguistic practice of
the period and the Amendments’ historical context. However, the collection does not contain a
sufficient number or perhaps wide enough variety of documents to allow a reader
to reach immersion, so readers would have to go beyond the collection.
A fourth
technique is mastering the Constitution’s “language of law,” as John
McGinnis and Michael Rappaport have argued. Perhaps much of the Constitution is written
using a legal idiom, and so the public meaning of these provisions will be
derived from legal practice and legal rules of interpretation. For instance, one would look to international
law to ascertain the meaning of “Letters of Marque and Reprisal” in Article I,
Section 8. Turning to originalist
scholarship, John
Stinneford’s explanation of the original meaning of “unusual” in
the Eighth Amendment concluded that it was a “legal term of art”
Professor
Lash’s collection will be of modest assistance to this method because it does
not contain sufficient documents from legal practice to provide reliable data
on the language of the law. American
legal practice includes cases, statutes, and learned commentary on the
law. The
Reconstruction Amendments has all of these, but not in sufficient quantity and with sufficient
focus on the terms of art and legal rules of interpretation pertinent to the
Amendments to establish the Amendments’ language of law.
The
newest technique is corpus linguistics.
Corpus linguistics is computer-assisted research of large bodies of period
uses of the target words or phrases (gathered in bodies of documents called
corpora) to identify meaning. For
instance, Jennifer
Mascott employed corpus linguistics to help identify the
original meaning of “Officer[]” as “any individual who had ongoing
responsibility for a governmental duty.”
Lash’s
collection would be of little value for corpus linguistics because it is not a
searchable corpus. Even if it were to
become a searchable corpus it would not be large enough to support reliable
conclusions. Third, the data set
represented by the collection was selected by a scholar and may not be
representative of linguistic practices before and during Reconstruction. Lastly, the time period covered by the
documents in Lash’s collection goes significantly beyond Reconstruction itself,
which is likely to make conclusions about public meaning in 1868 less
reliable.
My
discussion up to now has focused on originalist interpretation of the Constitution.
Originalist theory has also developed the concept of constitutional construction.
Though originalists debate the nature and extent of constitutional
construction, most agree that construction occurs when the Constitution’s
original meaning is underdetermined. In
this construction zone, whether collections such as Lash’s will play a role,
and what that role is, depends on each scholar’s conception of
construction.
There
are a variety of different conceptions of constitutional construction. There are some basic categories we can use to
classify them. One categorization
concerns what, if anything, guides constitutional construction. For some, construction is an open field for
non-legal normativity. Keith Whittington
falls into this camp. “Rather than
revealing the meaning implicit in the constitutional text, constructions more
creatively generate constitutional meaning to resolve contemporary political
and legal disputes.” Here, Lash’s
collection will be of modest assistance because it is an interpreter’s already
existing and (likely) long-standing normative commitments that will guide
construction. For others, the
Constitution continues to constrain construction. Randy Barnett and Evan Bernick argue that
officers in the construction zone “must be committed to the Constitution’s
original spirit as well—the functions, purposes, goals, or aims implicit in its
individual clauses and structural decision.”
It is in this latter category that collections like Lash’s will continue
to provide valuable resources for originalist scholars. For instance, a scholar would be well served
by reading The Reconstruction Amendments to learn the “purposes, goals, [and] aims” of the Reconstruction
Amendments’ drafters.
Another
distinction is among who or what creates constitutional constructions. Some theories of construction identify courts
as the primary constructors, while other scholars identify the other branches
of the federal government and state actors.
In principle, the issue of who performs constitutional construction does
not seem related to whether and to what extent the constructor will benefit
from utilizing collections such as Lash’s.
* * *
Kurt
Lash’s The Reconstruction Amendments is a well-rounded and usable collection of documents
relevant to the Reconstruction Amendments.
Viewed from the perspective of modern originalist theory, it should find
a welcome reception to aid scholars working to identify the Constitution’s
original meaning, and will be useful to some originalist scholars to propose
constitutional constructions.
Lee J. Strang is the John
W. Stoepler Professor of Law & Values at the University of Toledo College
of Law. You can reach him by e-mail at Lee.strang@utoledo.edu.