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Balkinization Symposiums: A Continuing List                                                                E-mail: 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 Dunning School, Historical Error, and Oral Argument in Anderson v. Griswold
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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. 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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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |