Wednesday, June 16, 2021

What is Reconstruction?

Gerard N. Magliocca

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

The Reconstruction Amendments: The Essential Documents fulfills a need that was long felt but never met. Kurt Lash now stands alongside Max Farrand in doing extraordinary work to further constitutional knowledge by making a critical portion of our past more accessible. I want to focus my essay on Lash’s choices in arranging that knowledge.
Professor Lash is not the first person to create a documentary record of Reconstruction. On my bookshelf sits a copy of The Reconstruction Amendments’ Debates, which was edited by Alfred Avins and published in 1967 by the segregationist Virginia Commission on Constitutional Government. In the Preface, the Commission argued that the Constitution must be interpreted “in accordance with the intent and understanding of the framers of the particular provision under consideration.” Professor Avins and the Commission were convinced that Brown v. Board of Education was wrongly decided and that an objective review of the historical record would support their case. While Professor Lash is also an originalist, his collection is not like the one that Avins assembled. 
First, the contents of the Avins and Lash collections differ sharply in a way that tracks the broader shift in originalism from original intent to original public meaning. Consistent with its view that only the intent and understanding of the framers mattered, the Avins book was “limited to congressional debates and reports. States cannot change the text of a proposed amendment; they can either ratify it or reject it. Congress alone can alter a draft of a proposed constitutional amendment.” Lash instead adopts a broader definition of “essential documents” that includes judicial opinions, letters, newspaper editorials, and speeches outside of Congress. As he explains in his Introduction, “the collection is meant to provide insight into what most people thought that they were doing when they adopted these amendments.” One benefit of Lash’s more inclusive approach is that readers learn what leading women and Black activists said about Reconstruction; voices that are almost totally absent from Avins’ work. 
Second, the chronological range of each collection is rather different. Avins starts--somewhat inexplicably--with an 1849 congressional debate over slavery in the District of Columbia and ends with the enactment of the Civil Rights Act of 1875. Lash begins with the Declaration of Independence and includes more than 200 pages of material before 1849 but (except for a brief appendix) ends in 1870 with the ratification of the Fifteenth Amendment. The advantage of Lash’s organization is that there is considerable background material on slavery, federalism, and the abolitionist movement that makes the subsequent debates easier to follow. Avins was probably correct, though, to include more resources from 1870 to 1875, as the initial construction of the Reconstruction Amendments by Congress contains many useful insights. For example, Michael McConnell’s pathbreaking article on “Originalism and the Desegregation Cases” relies in large part on debates in Congress after 1870, and my own work on Sections Two and Three of the Fourteenth Amendment draw heavily on congressional debates that occurred in the early 1870s.
Third, the commentary by Avins and Lash might as well come from different planets. Avins included a “Reader’s Guide” at the start of his volume that offered strong opinions on the underlying material. For example, he wrote that “even the Radical Republicans were prepared to institute segregated schools for Negroes” and that they “did not believe in racial equality.” The testimony taken in 1866 by the Joint Committee on Reconstruction “was often a mixture of hearsay, opinion, and speculation.” Charles Sumner was dismissed as “unpractical and impractical.” And so on. Avins also used his comments to wage a running battle with the Warren Court, denying at one point that the “one-person, one-vote” principle could be justified by the Reconstruction materials.  Lash’s commentary, interspersed throughout the book, is far more restrained, though he is not completely agnostic. For example, he describes slavery as “[a] horrific and divisive institution,” calls Lincoln’s Second Inaugural Address “a remarkable speech,” and calls out the “racist assumptions” of members of Congress.   
In one respect, though, Avins and Lash are of like mind. They both see John Bingham as the driving force behind Section One of the Fourteenth Amendment. Avins repeatedly described Bingham as a “radical” and urged readers to pay close attention to his speeches in the House of Representatives. Likewise, Lash gives Bingham plenty of airtime and describes him as “one of the most important players in this constitutional drama.” A particular gem in The Essential Documents is Bingham’s December 1868 interview with the New York Herald in which he lays out the stakes of the Fourteenth Amendment and gives a preview of the fight over the Fifteenth Amendment. “The question of universal suffrage,” Bingham declared, “is an inevitable part of the future. Suffrage is confined to male persons by the tradition of the government, and to free persons, but not to whites. The word white was deliberately voted out of the phraseology of the Constitution.”
The split between Avins and Lash on what constitutes Reconstruction involves some reasonable professional judgments about how to make sense of such a vast amount of information, but their choices also reflect the constitutional culture surrounding each project. It’s hard to imagine Avins including Frederick Douglas or Susan B. Anthony in his collection as Lash does, even in the unlikely event that Avins cared about their views, in part because the Supreme Court never cited either of them before 1967. Avins also quoted the views of the Fourteenth Amendment’s critics more than Lash does, which isn’t terribly surprising given the relative reputations of the leading Representatives and Senators during the 1960s. Likewise, Lash’s decision to (more or less) end his story in 1870 provides a kind of happy ending that my co-blogger Stephen Griffin criticizes as part of a modern trend of “Optimistic Originalism” with respect to Reconstruction. Lash’s collection is also more directed towards individual liberties under the Fourteenth Amendment, which are a particular concern today. There is a lot less material about racial segregation, which was a leading topic of the materials that Avins selected given the constitutional priorities of his era.   
Comparing the work of Avins and Lash yields a broader lesson. The canon of the Founding, as set forth more than a century ago by Max Farrand’s Records of the Federal Convention, remains a stable reference point in constitutional law. The canon of Reconstruction, much like the meaning of the Civil War itself, is up for grabs. This partly explains the fracture of our politics, but also creates extraordinary opportunities for scholars and lawyers who want to refashion the national narrative. The Essential Documents is an essential part of that process, but I doubt that Professor Lash will have the final word.  

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