Un-Reconstruction

In a recent post, I explained that the holding of In Re Griffin, a leading case on Section Three of the Fourteenth Amendment, cannot be properly understood without recognizing that Virginia was an unreconstructed state when the decision was made. A superior court in Arizona that dismissed a set of Section Three challenges yesterday relied, in part, on Griffin without mentioning or analyzing that point.

It's easy to criticize that omission. But how many judges or lawyers know the basics of Reconstruction? The only time that history makes an appearance in a standard law school course is Ex Parte McCardle, and even for that discussion I'm not sure there's much depth. And an interpretation by a court almost never turns on whether a state was unreconstructed or not. The issue did come up in the immediate wake of the Civil War, of course, but virtually never since then. 

The failure to include Reconstruction, as distinct from the Reconstruction Amendments, in standard legal education  creates many problems. The Supreme Court's reasoning in Shelby County, for example, comes up short in part because Chief Justice Roberts did not engage the history of the Fifteenth Amendment in his opinion. People like Mark and Kurt Lash doing great work to improve this state of affairs, but there is a long way to go.