For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).
Evan D. Bernick
Mark Graber isn’t a timid man. Nearly two decades ago, Graber contended that Chief Justice Roger Taney’s infamous pro-slavery majority opinion for the Court in Dred Scott v. Sandford articulated a plausible interpretation of a slavery-accommodating Constitution. Now Graber has written Punish Treason, Reward Loyalty (“PTRL”), an ambitious and provocative piece of constitutional iconoclasm which argues that what is today widely regarded as the most important provision of the Fourteenth Amendment was mostly an afterthought for its Framers. To amend Thomas Hobbes’s (possibly apocryphal) reaction to a theological-political treatise by a Dutch contemporary (about whom much more below), few durst write so boldly.
PTRL is an essential resource, not only for law professors but for historians, political scientists, and indeed anyone who is interested in a past that continues to shape the present. It is also flawed in deeply frustrating ways. What follows is a critique of Graber’s iconoclasm and a confession of abiding constitutional faith.
Everyone
knows—or thought they did—that the Fourteenth Amendment expresses national
commitments to civil rights and racial equality. Section One, with its
definition of U.S. citizenship and express guarantees of the privileges and
immunities of national citizenship, due process of law, and the equal
protection of the laws, is first in order and rank among the Fourteenth
Amendment’s provisions. These civil-rights guarantees were directed against the
Black Codes—post-Thirteenth-Amendment efforts by former Confederate states to
reestablish slavery by another name. They were meant to place beyond any
doubt the constitutionality of federal legislation that would protect formerly
enslaved people, especially the Civil Rights Act of 1866. Section One was a
triumph.
And
everyone knows what happened next. The Fourteenth Amendment was never allowed
to succeed. A Republican-controlled Supreme Court gutted Section One, contemporaneously with a general Republican
retreat from Reconstruction that was cemented with the withdrawal of federal
troops. This withdrawal was the fruit of an 1877 “compromise” with Democrats
that elevated a Republican to the presidency at the price of abandoning Black
people in the former Confederate states to the Ku Klux Klan and Jim Crow. The
Fourteenth Amendment would not recover for more than half a century. Reconstruction’s
failure is a tragedy.
This
iconography—Section One, triumph, and tragedy—dominates scholarship, judicial
opinions, and popular discourse concerning the Fourteenth Amendment. Section
One is civic Scripture. The other Sections (with the occasional exception of
Section Five) are relics that are barely known, let alone venerated. The amount
of attention that Section Three has received of late is striking in part because
it is so unusual—it took a literal riot at the Capitol (encouraged by a sitting
President) to make it happen.
Graber
contends that most of this is so much constitutional superstition—a
constellation of false and possibly harmful beliefs about the Constitution and
constitutionalism. Constitutions aren’t just about rights—often enough, they’re
about power. Reconstruction Republicans were primarily concerned with preventing
the return to power of a secessionist oligarchy comparable to the pre-War
“Slave Power” (and in many cases consisting in the same people). The Fourteenth
Amendment is tailored to achieve that goal.
To be
sure, those loyal to the United States, regardless of race, needed protection
for their civil rights. But they also needed protection against economic
domination, in the form of taxation to compensate slaveholders for the
expropriation of their “property” and to pay secessionists’ war debts. And
protecting rights required the Republican Party. Sections Two, Three, and Four
of the Fourteenth Amendment were calculated to entrench
control of national politics by a party that considered itself uniquely
representative of a popular majority and committed to the constitutional order.
So,
why Section One? On Graber’s account, Republicans for the most part thought,
“why not”?. They believed that the Constitution already gave them the authority
to enact all the civil-rights legislation they considered necessary. But they
were willing to defer to Ohio Representative John Bingham, who disagreed and
was prepared to make very long speeches about it.
Graber
adduces overwhelming evidence that. Bingham was indeed an outlier—especially in
his insistence that the Civil Rights Act of 1866 needed to be
“constitutionalized.” Still, that doesn’t mean that other Republicans considered
Section One insignificant.. More importantly, it doesn’t mean that people
outside of Congress considered it insignificant—particularly when congressional
Republicans centered it in making the case for ratification.
I can
understand why Graber relies primarily upon the Congressional Globe. It’s an
important source of evidence of how Republicans understood the text, structure,
and functions of the Fourteenth Amendment, and a public-facing one. I can’t
understand why Graber spends so little time with newspaper coverage of the election campaigns of 1866,
which Republicans used to make the case for the Fourteenth Amendment. Informing
readers that he will not rely upon “columns from an unknown pundit published by
a newspaper that went out of business in 1867” (PTRL xxxiv) is insufficient to
justify neglecting, say, the following speech which Speaker of the House Schuyler
Colfax delivered on April 6, 1866 in Indianapolis:
The first section of this Constitutional
Amendment is very much denounced by our opponents—very much misrepresented and
perverted. [Mr. C here read the first section of the proposed amendment.] I
stand by every word and letter of it: it’s going to be the gem of the
Constitution when it is placed there, as it will be, by this American people.
[Applause.] I will tell you why I love it. It is because it is the Declaration
of Independence placed immutably and forever in our Constitution.
There
is a deeper problem with Graber’s narrow focus on Republican legislators, whom
he repeatedly calls “responsible” for the Fourteenth Amendment. When people outside
of Congress—particularly people of color—appear in Graber’s narrative, they are
(to borrow from a Hamlet motif that Graber runs throughout) somewhere in
between Osric and Ophelia. They are instruments of the plot rather than movers.
This is in large part a function of the White-elite-centered story that Graber
chooses to tell about the Fourteenth Amendment. But no one forced him to tell
this one, and the way in which he tells it is descriptively and normatively
problematic.
An
example: Graber dismisses the Equal Protection Clause as a “vague” (PTRL
xxxiii) generality that perhaps only meant something to John Bingham. There was
nothing vague about it to Black people who demanded the protection of the laws. It meant protection against whipping,
lynching, scalding, and dismemberment, by state and nonstate actors. This understanding
of equal protection is all over the Congressional Globe in connection with
civil-rights legislation enacted (as Graber acknowledges!) “a mere four years
after the Fourteenth Amendment was ratified” (PTRL xxxv), to the point where it would be tedious to
enumerate all the examples. (But some of us have tried our best.). Graber sweeps all of this aside in favor of a 1982 work
of normative scholarship that barely touches upon the relevant
history and a reminiscence by Republican Senator George Boutwell that is
several decades removed from the critical events. That is all we get in support
of the claim that “the equal protection of the laws” provided “little
assistance to constitutional decision makers.” (PTRL xxxvii).
Now,
the normative problem. There is no Fourteenth Amendment without Black-led insurgency against enslavers following the
enactment of the Fugitive Slave Act of 1850 or the mass, biracial constitutional politics that built Republican power capable of
transforming an enslavers’ fiscal-military state into something resembling
(well) a republic. Graber’s attributions of responsibility to elite White
Republicans have the appearance of a kind of epistemic
injustice of which
originalists have been rightly accused. This appearance is not
dispelled by a few citations that underscore Graber’s lack of engagement with
Section One scholarship, which is acknowledged only to be largely dismissed as
suffering from varying degrees of “disciplinary blindness.” (PTRL xlv). At one
point Graber accuses those who claim that “the point of constitutional reform
was to constitutionalize the rights former slaves needed to become legal equals
in the United States”—which is to say, most contemporary scholars— of
“accepting uncritically the Dunning school’s understanding” of Reconstruction. (PTRL
xlvii). That’s not just unfair—it’s nasty.
Graber
might respond that I’m being unfair. He’s just sharing what he found,
and what he found confirms Stephen Griffin’s critique of “optimistic originalism” with happy normative endings. The
Fourteenth Amendment was framed by Republicans who with only a handful of
exceptions were not racial egalitarians. Even the latter handful believed that racial
equality depended upon the hegemony of the Republican Party. Graber is concerned
with what is, not what ought to be.
I
don’t think you can do without normative theory if you’re going to talk about the
Constitution of the United States or how it’s supposed to work. What Robert Cover said of legal interpretation is true of
constitutional creation, operation, preservation, transformation: It takes
place in a field of pain and death. To invoke the Constitution, to make claims
about the Constitution, is in the context of a culture that regards its
strictures as something normatively comparable to Scripture a political choice that requires
political reflection and justification.
Graber
views the Fourteenth Amendment through a power lens, so I have just the guy for
him—an iconoclast for whom power was not merely one constitutionally salient thing among
many but everything, metaphysically, politically, and ethically. I have in mind
Benedict de Spinoza, who used the text and history of the Hebrew Scriptures to dispel disempowering
superstitions which promoted elite domination and to make the case for empowering
republicanism.
Spinoza
did not, of course, use the word “power,” and English translations of his Latin
can obscure important distinctions by conflating different phenomena. There are
two words that are generally translated as “power”: Potentia and potestas.
Potentia refers to the concrete capacity to produce effects—that is,
power to. Potestas refers to formal entitlement or authority, and
is associated with hierarchical relationships—that is, power over. Spinoza
contended that state potestas was justified to the precise extent that
it was used to build good potentia—that it increased the ability of all
members of the popular multitudo to participate in governance, establish
control over the conditions of their lives, and contest efforts to dominate them. Agonistic, conflictual democracy was both a means and an end to
making stable joy as accessible as possible to as many people as possible.
Spinoza
chose the Hebrew Scriptures as a means of building good
potentia because he considered that he had no choice under the political
circumstances. They were part of the Dutch constitutional order. They did not
contain anything true that could not be discerned through rational inquiry, and
they contained a great deal that was false. The prophets didn’t have any
theological insight; they had extraordinarily vivid imaginations, and
imagination is an unreliable source of information. There were no miracles, in
the sense of deliberate divine interventions in the natural order. God does not
command, is not jealous, does not consider human beings exceptional (or indeed “consider”
anything at all), and does not promise us eternal bliss or punishment in reward
for obedience.
But reason
does not reign over political life. The Scriptures gripped the imagination of
the Dutch multitudo, often for ill. Spinoza sought to make the best of a
bad hand. Every word of the story he told about the rise and fall of the Hebrew
Republic was carefully chosen to build democratic potentia in the
present—and the future. I submit that we ought to do the same in engaging with what
Aziz Rana calls our creedal constitutionalism—thoughtfully, intentionally, transparently.
Graber’s
story is still unfolding. But I can’t resist returning to Hamlet. Graber
makes brief reference to Tom Stoppard’s Rosencrantz and Guildenstern Are Dead, a play that revolves entirely around
two Hamlet characters—Hamlet’s childhood friends—who have no idea what
the story is really about. It’s hard to feel too sorry for Rosencrantz
and Guildenstern, who are doing the bidding of Claudius. But suffice to say
that we don’t want to end up in their shoes. If John Bingham isn’t the main
character in the story of the Fourteenth Amendment we ought to tell, neither is
the entire chorus of Republicans on whom Graber focuses his attention. Indeed,
there’s not just one story to tell about this exercise of constitutional
power.
PTRL deserves
praise, not only for its general call for more attention from constitutional
scholars to the role of power in constitutional design but for its careful
account of how the Fourteenth Amendment institutionalized power—through means
that have been hiding in plain sight! But there is more power here than Graber
appreciates. The Reconstruction Amendments were downstream of democratic forces
of unparalleled magnitude. Those who use them to build power in the present are not in the grips of
superstition. They are witnesses to transformative human potentia.
Evan Bernick is an Associate Professor of Law at Northern Illinois University College of Law. You can reach him by e-mail at ebernick@niu.edu.