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01/06/2016

Mark Graber (and Gerard Magliocca) on the Roberts Court and the Reconstruction Amendments
Michael Ramsey

At Balkinization, Mark Graber: The Copperhead Court?  From the introduction:

One remarkable feature of contemporary constitutionalism is the extent to which the foundations of Roberts Court and conservative constitutionalism lie in the post-bellum Democratic opposition to the Second Freedmen’s Bureau Bill and other exercises of congressional power under the Thirteenth Amendment.  Over and over again, Chief Justice John Roberts and other conservatives almost quote verbatim statements that Democrats made in the Thirty-Ninth Congress.  The Roberts Court does not share the post-bellum Democratic commitment to white supremacy.  Finding other differences between the constitutional commitments of former copperheads and doughfaces and prominent contemporary conservatives is quite difficult. 

And in conclusion:

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified.  Apparently with respect to the Thirteenth Amendment, what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Gerard Magliocca adds

To build on Mark's post, I want to point out that there are significant obstacles for lawyers who are inclined to interpret Reconstruction broadly (or just correctly), let alone for those who aren't.

First, there are no detailed notes on the discussions of the Joint Committee on Reconstruction, which was created 150 years ago this month. While Madison's Notes on the Constitutional Convention are flawed (for example, they were not published until long after the fact and were revised substantially by him after 1789), at least we have some sort of record of what was said in Philadelphia.  For the Joint Committee, by contrast, we have only a journal with bare-bones minutes.  Imagine how much constitutional debate would have been enriched if we knew how John Bingham, Thaddeus Stevens, and the others on what amounted to the Second Constitutional Convention said behind closed doors.

Second, there is no Federalist Papers for Reconstruction.  Bingham and Stevens never had the time (or probably the motivation) to write a series of detailed essays defending and explaining their work.  Courts and lawyers, though, often need this sort of explication to understand the context of the text that they are required to apply.

Third, there is no equivalent of Farrand's Records on the Reconstruction Amendments.  Good luck trying to find a single source that nicely organizes the debates of the Thirty-Ninth Congress, the ratification debates in the states, or the public statements and private letters of those Founders.

And further:

As a follow-up to my prior post, I was pleased to learn that Kurt Lash is putting together a collection of Reconstruction materials for the University of Chicago Press.  That is exciting news, and I look forward to seeing that book.