Sunday, June 20, 2021

What Reconstruction Demonstrates about Constitutional Change

Guest Blogger

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

Richard Primus 

            The Reconstruction Amendments embody the greatest set of changes to the U.S. constitutional system since the 1780s.  As such, they offer windows onto two fundamental questions of constitutional law.  One of those questions is about the relationship of the change those Amendments represent to the change that the 1780s represents—that is, in the normal terminology, the relationship of Reconstruction to the Founding.  The other question is about the relationship of formal constitutional amendments to substantive constitutional change. 

            Kurt Lash’s two edited volumes, called The Reconstruction Amendments: The Essential Documents, embodies an answer to the first of those questions.  The collection of documents is an impressive achievement: thorough, textured, and provocative.  Its compilation is a service to the field, but the work is more theorized than the compliment “service to the field” often connotes.  And one of the important respects in which the work is theorized is in Lash’s choice to assert—and, depending on the reader’s judgment, perhaps to demonstrate—a perspective on Reconstruction’s relationship to the Founding. 

The gestation of the Reconstruction Amendments, Lash maintains, began not during the Civil War nor even in the prior decades of sectional strife but all the way back in the eighteenth century.  “[T]he time period involved,” Lash explains in his Introduction, “can reasonably be viewed as extending from the 1780s to the 1880s.” (I.ix)  And so the Reconstruction Amendments’ “essential documents,” as Lash presents the story, include the Declaration of Independence, the Northwest Ordinance, the 1787 Constitution and the first twelve Amendments, and half a dozen Federalist Papers, as well as many other documents predating secession. 

            Lash is on to something important with this framing.  He has not made the publication of these volumes into a moment for articulating a thorough argument for the perspective—except, of course, in the sense in which his selection of the documents is the articulation of an argument.  Lash mostly lets the documents, and the selection, speak for themselves.  This symposium is accordingly less an occasion for engaging with an idea that Lash offers in detail than an opportunity to reflect on the significance of the Reconstruction Amendments from the vantage point that Lash’s selection method suggests.  What, then, might we recognize about (or based on) the Reconstruction Amendments if our point of departure is the thought that those Amendments were nearly a century in the making?

If we experiment with understanding the Reconstruction Amendments as the product of a process going back to the eighteenth century, we should notice that there is more than one way, within such an understanding, to see the relationship between the Reconstruction Amendments and the making of the eighteenth-century Constitution.  On one reading, the Founding of the 1780s is an important part of the Reconstruction Amendments’ backstory, important enough that one cannot really understand Reconstruction without understanding the Founding.  But on another possible reading, “the Founding” is not best understood as something that ended in the 1780s.  On this alternative reading, the 1770s and 1780s featured the opening developments in a continuous century of nation-building, and the foundation for the Republic we inhabit was not completely laid until the Reconstruction Amendments were in place. 

The distinction between these perspectives on Reconstruction might be analogized to the difference between the sequel to a first book and the second act of a two-act play.  If we see Reconstruction as a sequel, then the Founding was complete in the eighteenth century, and Reconstruction was something important that happened later, drawing on what happened earlier.  But if Reconstruction is a second act, then the constitution-building of the 1780s was incomplete until Reconstruction gave the Republic its more definite form.  The first vision is plausible, but the reader who confronts Lash’s work might glimpse in it the plausibility of the second vision, too.  And the second vision, though more adventurous, has much to recommend it.  Like the first act of a good two-act play, the constitution-building of the 1780s ends with much accomplished but still in media res, with fundamental issues waiting to be resolved.  (One could say something similar about how Reconstruction ends, but that takes us too far afield for now.) 

These analogies are only analogies.  The relationship between the constitutional change of the 1780s and that of the 1860s is too complex to be cleanly described as either a sequel or a second act.  But the point that the analogies might illuminate remains.  Yes, we can say that the Republic was founded in the 1780s and then revised in the 1860s.  But we can also see the ratifications of 1787-88 less as a stable resting point than as an important way station in a larger process, one that—precisely because of the inadequacy of the way station—could not reach a more decisive resolution without the pain of civil war. 

The choice between these readings can shape our intuitions about what Reconstruction means for the second of the two fundamental issues noted above: the relationship between constitutional change and formal amendment.  If Reconstruction has a backstory in the Founding but is not part of the Founding, then the Reconstruction Amendments look pretty much the way that constitutional law conventionally understands formal amendments in general: as changes made pursuant to rules laid down at the earlier and more authoritative moment.  Availing themselves of the permission granted by the Founding, and using the Founding’s prescribed process, the Reconstructors successfully made necessary changes to the Constitution. 

Understood that way, the Reconstruction Amendments might offer a model of constitutional change for later generations—generations that are not part of the moment of first formation, as Reconstruction was not, and in which change is needed, as it was during Reconstruction.  Indeed, in the ongoing debate between people who think the constitutional regime legitimately changes in more ways than Article V imagines and people who think that legitimate change comes only through Article V, the Reconstruction Amendments might seem to be a powerful resource for the latter perspective.  Even the monumental changes of Reconstruction, the argument would run, were channeled through Article V.  Yes, the Article V process leading to those Amendments was in some respects procedurally irregular, as Bruce Ackerman has shown.  Nonetheless, Article V was the vehicle for change.  If anything, the Reconstructors’ determination to use Article V even though doing so required irregularities might testify to Article V’s indispensability.  And if the fundamental changes of Reconstruction could (and perhaps had to) be accomplished by formal amendment, then whatever other changes might be necessary surely can (and perhaps must be) accomplished that way too. 

Thinking of Reconstruction as the closing act of the full Founding suggests a different possibility—one that is more able to incorporate a basic fact about the Reconstruction Amendments, which is that they would have been impossible without the civil war that preceded them.  That feature of the Amendments cannot be overstated.  Without the Civil War, three-quarters of the state legislatures would not have agreed to any of the Reconstruction Amendments.  Functioning constitutional systems are not supposed to require civil wars in order to adapt.  So if as late as the 1860s there were critical changes that needed to be made and which could only come about in conjunction with a civil war, perhaps the foundations of the Republic were not yet fully laid.  Perhaps the regime was still in formation; perhaps only with the adoption of the Reconstruction Amendments, and the end of slavery and the assertion of universal citizenship, was the Founding in its broader sense complete.  Perhaps the Civil War was not just a sequel; perhaps it is better understood as the necessary second act.  (And again, one might wonder about what is still unfinished at that point.) 

Once we foreground the basic fact that that the Reconstruction Amendments were made possible only by the Civil War, the lesson for Article V should be entirely different.  The moral of the story of the Reconstruction Amendments is then not that when fundamental change is needed, it can (or must) come through Article V.  The moral of the story is that some fundamental changes—even changes so badly needed that the viability and legitimacy of the system might require them—likely cannot come through Article V unless a civil war helps things move along.  If the system had functioned “maturely” and “properly”—that is, peacefully—then there would have been no Reconstruction Amendments. 

That’s not to say that the United States in, say, 1790 had no possible future as a just and legitimate polity unless a civil war would come and set things straight.  Perhaps there was, in 1790, a possible line of development in which slavery would eventually be abolished without civil war.  The United States was not the only polity to end slavery in the nineteenth century, and civil war wasn’t always required.  Much ink has been spilled by authors arguing that in the United States it had to come to war, and maybe those authors are right, and maybe they aren’t.  For present purposes, the point is that if there was another possible history in which slavery would have ended without civil war, then it’s perfectly plausible that in that history slavery would have ended without formal constitutional amendments, either.  Maybe the institution would eventually have withered away; maybe modern state-building and international competition would eventually have yielded a national legal elite prepared to prohibit slavery by congressional statute, in the way that child labor was eventually prohibited.  Or maybe not.  Yogi Berra said that prediction is hard, especially about the future.  It’s also hard about the counterfactual past.  What we can know for certain is that in the single actual playing of history’s tape, the end of slavery and a related set of fundamental changes came about in the decade after 1861, and that a considerable portion of those changes was embodied in formal amendments—and that it took the Civil War to make those amendments happen. 

The proposition “Article V is an adequate vehicle when fundamental change is necessary” is different from the proposition “Article V is an adequate vehicle when fundamental change is necessary, so long as the use of Article V is proximately preceded by a bloody civil war that leaves the reformers in a position to dictate terms.”  The former proposition, if true, would be a legitimate (though not dispositive) argument against recognizing the legitimacy of change that comes through other channels.  The latter proposition…well, not so much.  A constitutional system whose sole mechanism for fundamental change requires a bloody civil war to be effective is, by definition, not a constitutional system built to adapt peacefully to changing conditions and, therefore, not a particularly desirable constitutional system. 

In this light, what do the Reconstruction Amendments suggest about the prospects for constitutional change in our own time?  I have in mind not just change around the edges but change of a more fundamental kind, change that would reallocate power in meaningful and necessary ways.  Curing the malapportionment of the Senate is a central example.  Having a Senate with two senators from every state never made principled sense: it was just a power play, rationalized by necessity at first and then given the veneer of respectability through the normative power of the actual and the narrative power of just-so stories.  But a legislative chamber in which 50% of the voters elect 16 members and the other 50% of the voters elect 84 members is not a recipe for long- or even medium-term legitimacy.  And it’s getting worse. 

Reapportioning the Senate, like abolishing slavery, would mean revisiting and repudiating an ugly compromise made during the 1780s.  (Not that the two compromises were equally ugly, or ugly in the same way.  But both were bad enough to be worth repudiating.)  Does the system offer the possibility of peaceful reform that would address this problem?  In principle, yes, if only every state would agree.  Article V permits changes to the composition of the Senate on unanimous state agreement.  But unanimous state agreement on a reform that would drastically reduce the power of many states is about as unlikely as agreement by three-fourths of the legislatures to abolish slavery and establish universal birthright citizenship would have been in 1860—or in 1870 or 1880, had the Civil War not intervened. 

There is much to celebrate in the Reconstruction Amendments—much of it visible in Lash’s volumes.  It might not take things too far to say that in the modern Republic, the Constitution’s legitimacy is hard to imagine without them.  But if the Constitution’s future legitimacy depends on future reforms, and it well may, then it is hard to see Reconstruction as providing a template for how to make the change.  Reconstruction’s change required a war, and hoping for another civil war seems like a bad idea.  One hopes we will find creative solutions of a different kind. 

Richard Primus is Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School. You can reach him by e-mail at

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