Monday, February 12, 2024

The Dunning School, Historical Error, and Oral Argument in Anderson v. Griswold

Mark Graber

The specter of Dunning School history haunted oral argument in Anderson v. Griswold.  Chief Justice John Roberts inadvertently channeled Dunning School history when suggesting that in 1870 southern legislatures with substantial black representation could not be trusted to implement the constitutional rules for disqualification laid out in Section Three of the Fourteenth Amendment.  Justice Ketanji Brown Jackson inadvertently echoed Dunning School gospel when she treated a Democrat committed to white supremacy as a better authority on the post-Civil War Amendment than a Republican committed to free labor and racial equality.  No justice spoke for the many contemporary historians who wrote or signed amicus briefs that offered accurate history in place of the racist bromides of the Dunning School.  Instead, justices on both the left and right made deeply problematic historical assertions unaware of their foundations in the white supremacist commitments of the history profession for most of the twentieth century.

The Dunning School, which flourished in the American academy for most of the twentieth century, insisted that Reconstruction was a “tragic era” in American constitutional politics.  Republicans interested in the spoils of government sought to empower African-Americans incapable of governing.  The result was corruption, misgovernance, and black on white racial violence.  See Gone With the Wind.  American constitutional politics returned to normal only when Democrats committed to white supremacy redeemed the south and enough Republicans in the North regained their senses and restored “the white man’s government.”

The Dunning School detested Section Three of the Fourteenth Amendment, which in their view threatened to place unqualified African-Americans in government offices at the expense of good southern gentlemen.  The questions from many Supreme Court justices in oral argument evinced a good deal of sympathy for Dunning School dogma, minus the overt racism.  Roberts Court justices seemed no more enthusiastic than Claude Bowers for what Republicans in the nineteenth century thought was a centerpiece of constitutional reform.  Some justices sought to neuter perceived Radical Republican constitutional reforms by offering distinctions between federal and state offices that neither exist in the text of Section Three nor in history of that provision’s implementation.  The justices imagined that presidents who foment insurrections are nevertheless exempt from constitutional qualifications.  Numerous briefs by leading historians tried to inform the court that these propositions were historical nonsense.  No one other than Justice Sonia Sotomayor appeared to be interested.

Republicans during the drafting and ratification process declared that Section Three disqualified from all federal and state offices all past and present federal officers who engaged in insurrection.  As a Unionist newspaper in Georgia declared, "He who has once held office on the strength of his solemn oath to support the Federal Constitution, and has nevertheless foresworn himself and treasonably plotted to subvert that Constitution, shall henceforth hold no political office."  Neither that editorial nor any other Republican commentary distinguished between presidents and members of Congress, federal officers and state officers, or persons who violated their oaths during the Civil War and persons who violated their oaths of office afterwards. Senator John Henderson of Missouri declared, “The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.”  Senator James Grimes stated, "the presumption being fair and legitimate that the man who has once violated his oath will be more liable to violate his fealty to the Government in the future.” Again, no distinction between presidents and other officials, no distinction between federal and state officials, and no distinction between past, present and future insurrectionists.

State Regulation of Federal Elections.  Not a single Republican during the ratification process even hinted that federal officials were to be treated differently than state officials or that in the absence of federal legislation, states could disqualify candidates for state offices, but not federal offices.  Republicans expressed greater fears that former confederates would occupy federal government positions than state government positions.  Representative Samuel McKee of Kentucky stated, "Do we not know that they are knocking at the doors of this hall and asking for the admittance of men upon these floors whose hands are reeking with the blood of slain loyalists."  To the extent problems arose, the Union Army was an equal opportunity disqualifier, prepared to remove from ballots and offices all persons subject to Section Three of the Fourteenth Amendment.  J.M. Schofield, the Secretary of War, did not distinguish between state and federal officers when he informed General Grant that the “effect” of Section Three “will be at once to remove from office all persons who are disqualified by that amendment.”

Justice Clarence Thomas began the parade of historical horribles in oral argument by challenging counsel arguing for disqualification to provide any example of state efforts to disqualify federal candidates during Reconstruction.  He seemed to think the lack of example demonstrated that no one thought states could implement Section Three.  Few if any examples exist, but not for reasons Thomas supposed.  The Fourteenth Amendment was ratified in 1868.  Until 1870, many former Confederate states were not represented in Congress.  As a condition for federal representation, former confederate states were required to enfranchise black men.  Some states seeking representation temporarily disenfranchised former confederates.  The result of these suffrage policies was that from 1868-1872, when an Amnesty Act passed, most congressional delegations from former confederate states were overwhelming Republican and included many black representatives.  These politics explain why neither Justice Thomas nor any amici opposing disqualification pointed to any federal elected official from a former confederate state plausibly subject to constitutional disqualification. 

Roberts spouted as bad history when he asked why Republicans would trust former confederate states to implement Section Three in good faith.  This would be inexcusable Dunning School history, excused only by Roberts's lack of historical knowledge.  From 1868 to 1872, the period in which Section Three was implemented by the states, Republicans, many of whom were former enslaved persons, controlled southern state governments.  Republicans trusted states that permitted black men to vote.  They trusted states that did not permit former confederates to vote.  Republicans did not trust states that did not permit black men to vote while permitting former confederates to vote.  No such states existed when the Fourteenth Amendment was ratified.  No Republican had any fear that Republican coalitions largely composed of former slaves would have any difficulty identifying former insurrectionists. No doubt the Chief Justice did not mean to repeat Dunning school claptrap that legislatures in which black men are represented cannot be trusted, but that is the effect of his historically oblivious question.

The presidential exemptions.  Not a single Republican during the ratification process even hinted at a presidential exemption from constitutional disqualification.  As several briefs, scholarly articles, and blog posts point out, Republicans regularly included the presidency as among the offices to which past officeholding insurrectionists were disqualified.  No responsible historian thinks otherwise.

Jackson's concern about the mysterious Republican failure to mention the presidency specifically in Section Three is easy to resolve.  Republicans mentioned only those specific offices whose status was thought controversial at the time.  When Section Three under debate, Representative Roscoe Conkling was claiming immunity from a federal statute preventing double-dipping by insisting that Representatives were not officers under the United States.  A House committee rejected that claim but noted that members of Congress might not be officers of the United States under other constitutional provisions.  Hence, the felt need to explicitly mention Representatives and Senators in Section Three.  Whether electors were officers is unclear.  That explains why they were mentioned in the Fourteenth Amendment.  No one in the 39th Congress considered doubtful whether the President was an officer of the United States or an officer under the United States. Andrew Johnson declared he was the "chief executive officer of the United States." Senator Benjamin Wade of Ohio and Representative Robert S. Hale of New York agreed that the president was “the chief executive officer of the Government.”  Given this consensus, the persons responsible for Section had no more need to explicitly mention the president than the Chief Justice or the Commander of the Union forces.

Jackson came too dangerously close to articulating Dunning School commitments when she suggested that Senator Reverdy Johnson of Maryland correctly thought Section Three exempted the presidency, even though Johnson immediately recanted after being corrected by a Republican.  Dunning School historians thought Johnson the greatest lawyer in the Senate.  He had, after all, convinced the Supreme Court as the victorious lawyer in Dred Scott that the Constitution forbade bans on slavery in American territories, prohibited freed slaves from becoming citizens of the United States and regarded African-Americans as having no rights white American citizens were obligated to respect.  Johnson was one of many Democrats who continued to maintain after the passage of the Thirteenth and Fourteenth Amendments that the United States was committed to a white man’s government.   These sentiments, the Dunning School thought, made Johnson a brilliant lawyer.  Contemporary historians disagree. Jackson when writing or signing opinions might consider finding a different authority on the meaning of the post-Civil War Amendments.

Dunning School history was rooted in the notion that white supremacists were better guides to the post-Civil War Constitution than antislavery advocates.  Reverdy Johnson was the hero attempting to retain white supremacy in the fact of the post-Civil War Amendments.  Southern legislatures with strong black representation were not to be trusted with implementing such constitutional articles as the Fourteenth Amendment. That the most racist president of the United States in the last century relies on Dunning School history is no accident.  That oral argument suggests the Supreme Court might accept such histories is disturbing, to say the least.

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