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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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Reconstruction Amendments’ Canonical Texts
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Monday, June 21, 2021
The Reconstruction Amendments’ Canonical Texts
Guest Blogger
For the Symposium on Kurt Lash, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.). Darrell A.H. Miller Constitutional history is uniquely susceptible
to the twin vices of all works of history: hagiography and Whiggery. There are three inter-related reasons for
this: First, American constitutional
culture reflects the relentless optimism that the constitution, like the common
law, will eventually “work itself pure.”
Second, constitutional law is inescapably normative and consequential—what
someone said yesterday decides who goes to jail today—so it matters who that
someone is. Third, constitutional lawyers
have yet to emerge fully from the long shadow of Ed Meese’s jurisprudence of
“original intentions.” Despite sophisticated
theoretical and technical tools developed in the last half-century,
jurists are still parsing Hamilton’s Federalist to determine the scope of “the judicial power” and
citing random letters from Thomas Jefferson to his nephew
to construe the term “bear arms.”
(Although that may be changing.) Given the hazards, it’s remarkable
that Kurt Lash’s masterful two volume set, The Reconstruction Amendments: The Essential Documents (Chicago
University Press 2021), mostly avoids these twin perils of constitutional
history. I say mostly because the
task Lash sets himself (revealed in the book’s subtitle) is nothing short of defining
the canonical works of Thirteenth, Fourteenth, and Fifteenth Amendment
interpretation. That project necessarily implies elevating some figures and condemning
others; choosing texts that proved prescient and those that appear benighted. But, to his credit, Lash’s normative
commitments are sotto voce – the product of editing and not editorializing. Ultimately, Lash has produced a single,
critical resource for understanding a profound moment in American constitution
making—a resource that is long, long overdue.
How scholars, lawyers, judges and the public use this resource depends
less on the merits of Lash’s work and more on how and when—if ever—the Reconstruction
Amendments are integrated into the American constitutional imagination. Initially, I was skeptical. Lash starts his compilation with the greatest
hits of any conventional founding-era edited volume: the Declaration of Independence, the Federalist,
the Kentucky and Virginia Resolutions, McCulloch v. Maryland. At first, it all seems to follow a familiar
and disappointing pattern where every constitutional argument—even ones about
Reconstruction—start and end with the thoughts of Hamilton, Madison and
Jefferson. But then, enter William Yates and his 1838
Treatise Rights of Colored Men – and we understand this compilation is
not about seeing emancipation through the eyes of Jefferson, but making Reconstruction
contemporaries as indispensable to constitutional meaning as any Founding
Father. Indeed, 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. The urgency of Trumbull’s speech on the emancipation
amendment becomes apparent when the Confederate Constitution’s express protection
of “negro slavery” is still ringing in your ears. Sometimes the effect is illuminating, even
comical. John C. Calhoun keeps turning
up like a bad penny. The genteel posturing
of his early writings becoming shriller and more explicitly pro-slavery in
later appearances. Most rewarding is Lash’s decision to
include newspaper records, pamphleteers, and lesser-known commentators in this
collection of essential documents. The cult of “great men” that still besets Founding
era history (most notably in legal briefs and public discourse), sets a trap for
Reconstruction historians who may be tempted to substitute one great man for
another. So instead of channeling the ghost
of Madison, you wind up channeling Bingham. But Lash avoids that snare.
That’s not to say that there’s no political elites in this collection. Certainly, there’s plenty of records from the
Congressional Globe, party platforms, speeches and debates of the leading
figures of the time. But these documents
are leavened with the social history of common folk. There’s the incendiary 1829 tract of David
Walker, declaring, like an abolitionist Patrick Henry: “[H]ad I not rather die
. . . than to be a slave to any tyrant[?]” There’s the lurid recounting of the 1866 New
Orleans massacre of Freedmen and their supporters in the Philadelphia Evening Telegraph, described as an
affront to “[t]he most sacred of
American rights . . . of the people to
assemble and consult together.” Nor does Lash flinch from including those
documents that expose ruptures among allies.
Elizabeth Cady Stanton denounces the Fifteenth Amendment for elevating
the interests of “ignorant natives and foreigners” over those of women a few
entries ahead of Douglass’s letter cheering the same Amendment. Lash has produced a book that every constitutional scholar
and historian needs to own. If anything,
I’m frustrated that it took this long. A
book like The Reconstruction Amendments
should have been published fifty years ago.
Prior works, as Lash notes in his introduction, are uneven and sometimes
unreliable. Alfred Avins published The
Reconstruction Amendments’ Debates: The Legislative History and Contemporary
Debates in Congress on the 13th, 14th, and 15th Amendment in 1967.
But that effort was marred by Avins’ pro-segregation apologetics and its
publication under the auspices of the anti-civil rights Virginia
Commission on Constitutional Government.
Phillip Foner and George Walker published a two-volume set of the Proceedings
of the Black National and State Conventions in 1980, but those documents are
indifferently edited and the book has become difficult to find. Lash ascribes the lack of a single,
curated set of Reconstruction Amendment sources, in part, to the fact that
there’s so much material. As he remarks
in the introduction, the Reconstruction Amendment debates didn’t occur secretly
behind dark curtains in a room in Philadelphia.
They happened on the floors of legislative chambers, and in the
newspapers, campaign halls, and meeting rooms of the nation. Reconstruction
history is public history. And therein lies the long-term challenge
to Lash’s project. For as much as it’s a
marvelous achievement, and as much it succeeds in being ecumenical, it’s a
compilation of a certain kind of constitutional history, for a certain type of constitutional
law. I predict that in the next few
years, some jurist will cite Lash’s book for a constitutional proposition (the
meaning of “Privileges or Immunities” seems a good guess) and the next question
will be—“Why these sources?” Already, constitutional scholars are using big data
techniques to mine linguistic databases to assess constitutional meaning. Judges are starting to pay attention too. Similar techniques someday could apply
to social history. Technological challenges
and methodological conservatism have thus far prevented any comprehensive database
of social history similar to what Lash has curated here. Those impediments might not last. Federal constitutional law fifty years from
now could look similar to what Michael Gilbert suggested about ballot initiative interpretation
– aggregate and code huge troves of data, including pamphlets, letters, emails,
polling, and public statements and assess the understanding of the median
ratifier. There’s no heroes or villains in such a
history, no high or low culture – only data. If that happens (and there’s no guarantee it
will) then the voices that Lash surfaces in his book become just a few more
coded inputs in a vast, impersonal digital expanse. Darrell
A.H. Miller is the Melvin G. Shimm Professor of Law at Duke Law School. You can reach him at dmiller@law.duke.edu.
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