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Reconstructing Reconstruction
The Supreme Court and the Production of Historical Truth
By Pamela Brandwein Duke University Press
Copyright © 1999 Duke University Press
All rights reserved.
ISBN: 978-0-8223-9779-3
CHAPTER 1
Introduction
"Easily the most dramatic episode in American history," states W. E. B. DuBois, "was the sudden move to free four million black slaves in an effort to stop a great civil war, to end forty years of bitter controversy, and to appease the moral sense of civilization." This book is about how that "great civil war" developed into a war of words, laws, and narrative histories, and how a victory in the battle of historical description affected constitutional decision-making. The period of Reconstruction following the Civil War saw the beginning of a long and continuing rhetorical contest among Northerners to define the nation's slavery and Reconstruction experience. Since Robert E. Lee's surrender at Appomattox, the halls of Congress, the federal courts, and law schools have been major sites in an ongoing contest to define Reconstruction history. The interpretation of Reconstruction has its own history, and I examine the practice of building and using that history in constitutional law. How did one version of Reconstruction come to overwhelm alternative versions, and what difference has this made?
The competition to interpret Reconstruction history involves issues of race, rights, and national identity. Had there been a single critique of slavery, a shared view about what it was in the slavery system that was "the problem," competing versions of Reconstruction history might never have arisen. In 1866, however, Republican and Northern Democratic congressmen diagnosed the threat of slavery differently. In the Reconstruction Congresses, they presented different versions of the slavery experience to support their views about which political and constitutional reforms were proper and best. For the Northern Democrats, the problem with slavery was the Southern demand for federal enforcement of slave law in the western territories. This demand violated the Democraticdoctrine of popular sovereignty, which preserved for local majorities the right to decide the slavery question for themselves. In 1866, Northern Democrats conceded federally imposed formal emancipation as an issue of war. In their view formal emancipation defined the destruction of slavery and marked the resolution of the slavery problem. Republicans saw slavery's threats more broadly. The problems with slavery included slavery's destruction of white men's civil liberties, its stagnating economic effects, and the accretion of illegitimate political power to the aristocratic, slaveholding elite. Republicans argued that formal emancipation and Southern renunciation of the secession right did not mark the "closing off" of the slavery problem.
When the Supreme Court interpreted the Reconstruction Amendments in the 1870s, it endorsed crucial elements of Northern Democratic perspectives on slavery, even though the Democrats voted against these amendments. The Court acknowledged new federal power to prohibit slave law, something Republican in origin, but the Court presented individual ownership of self as the definition of slavery's destruction, a Northern Democratic definition. In addition, the Court's definition of slavery's destruction (formal emancipation only) rested on a Northern Democratic version of the war's issues. The Supreme Court limited its version of these issues to the grounds that Northern Democrats employed to distinguish themselves from Southern slaveholders. The Court's version of the slavery/war experience contained some Republican elements but made no mention of the Republicans' political critique of slavery (that slavery destroyed civil liberties) or the Republicans' "free labor" concerns for labor independence and opportunity. The Court in its version of slavery and Reconstruction history reduced the dimensions of slavery politics.
In the 1950s a famous scholarly debate between Charles Fairman and William Crosskey over the original understanding of the Fourteenth Amendment helped validate and justify the Court's version of the war's issues and the Court's corresponding definition of slavery's destruction. In the 1960s this dominant version of war/slavery history worked to render Warren Court expansions of rights vulnerable to the criticism that they were the products of politics, not law. In other words, this institutional version of Reconstruction history provided "objective" ammunition for critics of Warren Court expansions of rights in the 1960s.
My goal, then, is to examine the creation of historical "truths" about Reconstruction and the ways that these truths are taken up by actors in a variety of social institutions for a variety of purposes. By tracing the production and use of the dominant history of Reconstruction, I provide a rhetorical tool (an account of the production of "credible" Reconstruction history) that would be useful to Warren Court defenders. This book focuses on crucial moments in American legal history: the Reconstruction debates, famous Reconstruction era Supreme Court decisions, and the Fairman-Crosskey debate. The book's chapters are organized chronologically so that the process of this history's production—as built mostly by Northern Democratic congressmen in 1866, reconstituted by the Supreme Court in the 1870s, and validated by Charles Fairman in the 1950s—may be followed. The last substantive chapter examines the impact of this history on Warren Court arguments about legislative apportionment.
My point of departure is the understanding that descriptions of events are contested ground. Official versions of events are now heavily scrutinized in academic scholarship and alternative versions are offered in their place, but the rhetorical contest through which "authoritative" accounts are created has not yet come under investigation. There are few studies of how particular versions of events beat out their competition and gain truth status. Additionally, little research has been done on the social and historical circumstances that give rise to prevailing legal orthodoxies. Because no "scientific" or neutral criteria exist for verifying historical accounts, the process by which historical knowledge gains "truth" status is a subject for sociological analysis. The very existence of competition to describe events suggests the need to understand trajectories of credibility, that is, the conditions and circumstances under which the institutional acceptability of historical accounts is won and lost. Further, how is the status of such an institutional history linked to the life of the institution?
I study the production of historical meaning as work, that is, as interpretive work. How is this interpretive work organized? How does it proceed? In what social and institutional settings do competing histories of Reconstruction and the Fourteenth Amendment meet and interact? What are the specific historical junctures at which terms of debate over Reconstruction are established? How are interpretive victories the product of contestable interpretive assumptions and institutional pressures? By addressing these sorts of questions, I map how interpretive practices in the nineteenth century and the 1950s affected the construction of legal arguments by the Warren Court majority and dissenters in the 1960s.
A New Approach to an Old Constitutional Debate
The extensive legal literature on Reconstruction revolves around two questions. What were the real intentions of Republican congressmen regarding specific legislative and constitutional provisions? To what extent is originalist jurisprudence justifiable? So far, study of the Congressional Globe (the official record of statements and proceedings in the Reconstruction Congresses) has yielded what William E. Nelson calls an "impasse in scholarship." Legal historians have dug in their heels, disagreeing on the question of whether the congressional Republicans undertook a revolution in federalism or sought to eviscerate the traditional federal system, and whether the Supreme Court subverted Republican objectives. To a large extent, historical disputes over the nature of Reconstruction have been disputes over the legislative objectives of the Republicans, both Moderates and so-called Radicals. (When I refer to Republicans, I am including the Moderates. Occasionally, I say something specific about the Moderates or Radicals. At those times, I identify the groups specifically.) The Northern Democrats, as noted, were the losers in the legislative battles of the 39th Congress.
In 1954, William Crosskey (in)famously put forward the proposition that Republicans held an unorthodox interpretation of the original Constitution. He argued that the Reconstruction debates could not be correctly understood unless the Republicans' constitutional theory was uncovered. In the decades that followed, Jacobus ten Broek, Howard Graham, William Wiecek, and Michael Kent Curtis chronicled the antislavery history of the Republican congressmen. They argued that the antislavery origins of the Republicans provided vital clues in the search for the legislative objectives of the Fourteenth Amendment. In the past decade, many scholars of Reconstruction, such as Lea S. VanderVelde, David A. J. Richards, Akhil Reed Amar, and Bruce Ackerman, have taken interpretive approaches in analyzing the Reconstruction debates. They have further uncovered, and have sought to elevate, the political and constitutional theory of the Republican majority that framed and passed Reconstruction legislation.
I approach the question of Fourteenth Amendment history from a new direction. I take interpretations of Reconstruction history as an object of study. I return to the Congressional Globe and the old debates over the "original understanding" of the Fourteenth Amendment to offer a partial record of the legal controversy over how the "facts" of Reconstructionhistory were established. I show how these "facts," in turn, have shaped the way in which civil rights decisions are defended.
A key point at issue is whether the Fourteenth Amendment originally applied the Bill of Rights to the states. Those who are unfamiliar with constitutional history will be surprised to learn that a Supreme Court decision in 1833 held the Bill of Rights applicable to the national government only; according to this decision, the states were free to abridge the Bill of Rights. A major debate in constitutional history has concerned whether Republicans intended to overrule this decision with the Fourteenth Amendment so that the Bill of Rights would then be protected from state abridgement as well. In the late 1930s the Supreme Court began to apply the Bill of Rights to the states in a piecemeal fashion (the Court did not use legislative history as the vehicle to accomplish this aim), but questions about original incorporation remained relevant in rights disputes. What was at stake in the debate over original incorporation was a general history of Reconstruction. In the 1960s, this general history seemed to prove that the Warren Court majority's reading of the Fourteenth Amendment was the product of political preferences.
Scholars have presumed that historical justifications for a vigorous Fourteenth Amendment jurisprudence such as that of the Warren Court depend on evidence that Republicans intended to eviscerate the traditional federal system. It is important to call attention to this presumption. One of my arguments is that the question of whether Republicans intended to eviscerate the traditional federal system is ill suited for investigating Republican intent. (I could also state this argument using concepts favored by originalists: the question of whether Republican legislation was originally understood as eviscerating the traditional federal system is ill suited for investigating original understanding.) Either way, the question is not tooled to take account of the Republicans' multidimensional relationship to the federal system. Let me explain.
The term "traditional federal system" is vague in at least two respects. First, the term can refer, for example, to state license to deny Bill of Rights guarantees and to limited federal power. Both characterized the federal system in the antebellum period. Evidence suggests that Republicans saw themselves as changing the former but preserving the latter. It is crucial to understand that Moderate Republicans saw their reforms, including application of the Bill of Rights to the states, as a narrow grant of federal power consistent with traditional limitations of federal power. The Fourteenth Amendment was Moderate legislation. It fell short of the goals sought by Radicals, though they voted for it. A key point is that Moderates tended to assume Southern compliance. They did not predict that the new federal oversight provisions they enacted would be frequently triggered. On the Moderates' behalf, we should remember that events had not yet taught otherwise. As they accumulated experience with Southern resistance, they began to understand that their twin commitments—to limited, infrequent use of federal power and to civil and personal rights protections—were in deep tension. So Moderates reluctantly passed more legislation to accomplish their initial goals.
Twentieth-century scholars have equated incorporation with a large expansion of federal power, and this assumption has run investigations aground. Some scholars have concluded from evidence of incorporation that Republicans were comfortable with a large expansion of federal power. Others have concluded from evidence of Republican attachment to limited federal power that Republicans did not apply the Bill of Rights to the states. Both are right by half. The culprit here is the assumed equation between incorporation and big expansion of federal power. Once this equation is broken, that is, once we see that Republicans could hold commitments to both incorporation and limited federal power, we can see that the term "traditional federal system" must be clarified before we can say whether Republicans intended to change it.
This term is vague in a second respect. Traditional means pertaining to or in accord with tradition, and tradition includes practices, behaviors, modes of thought, and precepts. If tradition is defined solely in terms of practice and behavior, or in terms of what is institutionally approved, then Republican reforms will be seen as a repudiation of the traditional. Indeed, Republicans argued that certain aspects of the state-federal distribution of power, for example, the lack of a federal remedy for state denials of antislavery activists' civil liberties, needed to be changed. Republicans justified this change by arguing that the lack of a federal remedy in such instances reflected the corruption of the "true" federal system. According to Republicans, original constitutional principles associated with the Declaration of Independence had not been securely enacted due to slavery and the Slave Power. Thus, Republicans saw their repudiation of federalism as it was practiced as an affirmation of the "true," federal system. Their reclamation of original ideas was traditional in this respect. In fact, Republicans called their legislation both merely corrective and revolutionary. This is understandable in light of their view of federalism as corrupted by slavery. The return to "original" principles was at once traditional and revolutionary. Because Republican reforms could be traditional in this sense, scholars must be careful not to limit their definition of traditional to what is practiced or institutionally approved. For if they do, the Republicans' repudiation-as-affirmation theme will be obscured.
This leads us back to the question, What evidence is necessary for historical justifications for more aggressive federal protection of rights? Such justifications might be based on a showing that Republicans targeted certain features of the antebellum system for change even if they understood these changes as consistent with the notion of limited federal power. Such justifications might emphasize substantive Republican ends—for example, securing free labor opportunity to blacks and Bill of Rights protections to both blacks and whites—and discuss the Republicans' evolving understanding of how much federal oversight was necessary to achieve these ends. The "might" here is significant. For while such arguments are possible, they are not necessary. This is an important point. Historical justifications for less aggressive federal protection might continue to be based on a showing that Republicans were not hearty enthusiasts for broad federal power.
Historical justifications for any Fourteenth Amendment jurisprudence will have to emphasize one Republican commitment over the other. What has happened, however, is that institutional history has preserved only one strand of Republican thought. So far, it has been the "limited federal power" element of Republican thought that has been institutionally emphasized, putting "history" on the side of a narrow, less aggressive jurisprudence. This was not mandated by the events of the 1860s. Using Republican history in different ways is possible once institutionally suppressed elements of it are recovered, such as Republican criticism of Southern denials of white men's civil liberties and Republican "free labor" commitments to labor opportunity. The recovery of these aspects would not lead inevitably to a more aggressive Fourteenth Amendment jurisprudence. It would, however, open avenues for building plausible historical justifications for federal protections of black rights, avenues that so far have remained blocked.
(Continues...)
Excerpted from Reconstructing Reconstruction by Pamela Brandwein. Copyright © 1999 Duke University Press. Excerpted by permission of Duke University Press.
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