Monthly Archives: April 2021

In my last post, I described the general nature and theory behind the collection, "The Reconstruction Amendments: Essential Documents," (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021).

In this post, I describe the theory and contents of Volume One, The Antebellum Constitution and the Thirteenth Amendment. This volume presents the antebellum constitutional debates which ultimately inform the framing and adoption of all three Reconstruction Amendments, and the public and legislative debates accompanying the framing and ratification of the Thirteenth Amendment. The two volumes are meant to be read (yes, read) in tandem; the debates and ideas documented in Volume One play key roles in the constitutional debates presented in Volume Two. That said, Volume One stands on its own as a documentary history of the antebellum national debate over whether the original Constitution was pro-slavery or anti-slavery (the current "1619 Project" debate), and the national abolition of slavery through the Thirteenth Amendment.

Volume One begins with documents representing the various theories of constitutional federalism that arose in the period between the Founding and the Civil War. The issue is important because theories of federalism later play key roles in the debates over the shape of the three Reconstruction Amendments (references to the Federalist Papers, for example, occur over and over again during the Reconstruction debates). Documents in this opening section include the Virginia and Kentucky Resolutions and "the principles of '98," the nationalist theories of John Marshall and Joseph Story, the radical state rights theories of John C. Calhoun, and James Madison's elderly efforts to oppose both John Calhoun and John Marshall.

Readers may be surprised to learn that some of the strongest supporters of constitutional federalism during this period were northern abolitionists who relied on theories of federalism in their resistance to the nationalization of slavery. This is most dramatically illustrated in the state of Wisconsin's 1850s decision to nullify the Fugitive Slave Act and reject the decisions of the Supreme Court.

Despite the wide-spread embrace of federalism, this same period also witnessed a growing nationalist interpretation of the originally federalist Bill of Rights. For example, the abolitionist Joel Tiffany insisted that the privileges and immunities of citizens of the United States included the rights declared in the first eight amendments (Tiffany, "A Treatise on the Unconstitutionality of Slavery").

A similar example can be found in an 1859 speech by a young Republican congressman from Ohio who declared that the Privileges and Immunities Clause of Article IV impliedly bound the states to respect the federal Bill of Rights (John Bingham, "Speech Against the Admission of Oregon"). Bingham's speech is critically important for anyone seeking to understand the theoretical roots of Bingham's later drafts of the Privileges or Immunities Clause of the Fourteenth Amendment.

Much of the first half of Volume One presents the antebellum debates over slavery and its relationship to the original Constitution. These materials include the debates over slavery in the Philadelphia Convention, the Missouri admission debates, the rise of northern abolitionism, slave state efforts to suppress abolitionist literature, northern resistance to the extension of slavery into the territories and the Supreme Court's decision in Dred Scott. Although the collection includes key congressional and political debates, the materials also include a vast array of voices from outside the halls of power demanding an end to the practice of chattel slavery. These include black activist David Walker's "Appeal," Susan B. Anthony's "Let's Make the Slave's Case Our Own," and Frederick Douglass's "The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?"

The Second Half of Volume One documents the country's remarkable journey from proposing a pro-slavery Thirteenth Amendment in 1861 to ratifying the anti-slavery Thirteenth Amendment in 1865. In a last-ditch effort to stanch the secession movement, Congress passed the "Corwin Amendment" which declared that "no amendment shall be made to the Constitution" which would authorize Congress to "abolish or interfere" with slavery in the states. The gambit did not work and, despite being ratified by a number of states, this first Thirteenth Amendment was forgotten with the outbreak of Civil War.

The dramatic framing and passage of the second Thirteenth Amendment takes up the remainder of Volume One. Documents include anti-slavery amendment petitions from the Women's Loyal National League, Charles Sumner's failed efforts to broaden the language of the Thirteenth Amendment, Democratic opposition speeches declaring that the proposed abolition amendment was an unconstitutional attempt to alter an irrevocably pro-slavery Constitution, the House of Representatives' failed first effort to pass the amendment, Frederick Douglass's "The Final Test of Self-Government, and the dramatic second round of debates and a second vote that turned on the decision of a handful of Democrats who might, or might not, change their original vote.

Volume One closes with the public debates over the ratification of the Thirteenth Amendment. Most of these materials, as far as I know, have never appeared in any prior collection. The proposed amendment raised a host of difficult questions that were discussed in newspapers around the country.

Were the states of the soon-to-be defeated Confederacy still in the Union and, if so, should they be allowed to vote on (and potentially defeat) the proposed amendment? ("Is the Union Destroyed?" New York Times editorial). Would ratification result in Democrats taking control of Congress since the formerly enslaved population of the southern states would now count as a full five-fifths of a person for the purposes of congressional representation (and membership in the electoral college)? ("Dr. Lieber's Letter to Senator E.D. Morgan," New York Tribune).

Lincoln's tragic assassination resulted in Vice President Andrew Johnson taking the lead in securing the abolition amendment's ratification. Johnson established provisional governments in the south and prodded their governors to ratify the abolition amendment and, perhaps, "extend the elective franchise to all persons of color who can read the Constitution" in order to quell congressional opposition to readmitting the southern states (Pres. Johnson to Provisional Mississippi Governor William Sharkey).

Meanwhile, anti-slavery societies, sensing that ratification was imminent, pivoted to calls for black suffrage, with advocates like Francis W. Harper declaring it would be unpardonable to say to black men "You are good enough for a soldier, but not for a citizen" (New York Times, "Speeches at the 1865 meeting of the American Anti-Slavery Society"). Similarly, the signatories of "An Address from the Colored Citizens of Norfolk Virginia to the People of the United States," demanded the rights of suffrage, not only as protection from discriminatory black codes, but also because "[n]o sane person will for a moment contend that color or birth are recognized by the Constitution of the United States as a bar to the acquisition or enjoyment of citizenship."

As the above documents illustrate, the drama of the Fifteenth Amendment began even before the ratification of the Thirteenth Amendment. In the meantime, however, ratification of the Thirteenth remained uncertain. Northern states like Delaware, Kentucky and New Jersey rejected the amendment. Provisional state legislatures feared Section Two of the proposed amendment would empower Congress to regulate local civil rights and establish black suffrage (see, e.g., Mississippi Joint Committee Report and Rejection of Proposed Amendment).

In response, Pres. Johnson's Secretary of State William Seward wrote letters to the southern governors insisting that their concerns were "querulous and unreasonable, since that clause [Section Two] is really restraining in its effect, instead of enlarging the powers of Congress" ("Seward to S.C. Provisional Governor Perry" New York Times). A number of southern legislatures ratified the amendment along with resolutions declaring their understanding that Seward's construction of Section Two was correct (see, South Carolina, "Ratification and Accompanying Resolutions," Nov. 3, 1865).

When Secretary of State Seward declared the ratification of the Thirteenth Amendment in December 1865, the question of congressional power under Section Two moved to center stage. In November and December of 1865, multiple national newspapers published editorials with competing interpretations of congressional power to enforce the Thirteenth Amendment. The issue would dominate the early debates of the Thirty-Ninth Congress and ultimately influence their decision to pass a Fourteenth Amendment.

Tomorrow: Documenting the extraordinary drama of the framing and ratification of the Fourteenth and Fifteenth Amendments.

Read the rest here:

"The Reconstruction Amendments: Essential Documents," Vol. 1: The Antebellum Constitution and The Thirteenth Amendment - Reason

In a similar vein, 21 Republican-controlled states, led by Texas and Montana, havesued the Biden administrationover its decision to revoke a permit for the Keystone XL pipeline, calling it an unconstitutional overuse of executive power that would diminish the states economies and tax revenue. Both lawsuits are pending in federal courts. Separately, in response to Bidens alleged hostility to the energy industry, Texas Governor Greg Abbottissued an executive order in January directing state agencies to use all lawful powers to challenge federal policies that disadvantage oil and gas operators. (Texas state agencies with the ability to loosen environmental regulations on the oil and gas industry largely do not appear to have changed policies in response to the order.)

Ultimately, many of these actions may amount to little more than grandstanding, and its difficult to discern whether or not a broad, deliberate strategy is at work. But behind the scenes, call records obtained by Grist show that the American Legislative Exchange Council, or ALEC, has formed a new working group to build upon these efforts.

On a one-hour call with ALEC members in late February, former Utah state representative Ken Ivory claimed that each directive in the presidents Januaryexecutive order on climate actionunduly entrenched federal power and stripped authority from the states. He surfaced fears that Biden will declare a national climate emergency that unlocks more than 130 unilateral executive actions. (Its unclear how Ivory, who did not respond to Grists request for comment, arrived at that figure.) Ivory also faulted the Democratic administration for promoting climate-focused policies within federal agencies through executive orders, rather than routing all proposals through Congress.

Were seeing something that theyre identifying as a new age in climate federalism, Ivory said.

The call was the first of two that have taken place so far as part of ALECs new Functional Federalism Working Group, which exists separately from a longstanding ALECtask force on federalism and international relations. The new group hasnt been publicized on the ALEC website beyondtwo brief mentionsinblog postspenned by Ivory. Its name suggests that the group is meant to redress what Ivory described as an imbalance of power between Bidens presidency and state governments, a majority of which are dominated by conservatives.

Whats the reasoning or the exact strategy for them in creating this secretive working group, we still dont know, said David Armiak, a research director with the Center for Media and Democracy, a nonprofit government watchdog group that tracks ALECs initiatives and provided Grist with a verbatim record of the two recent calls. Fossil fuel and pharmaceutical companies do still play leadership roles and very active roles in sponsor meetings, and theyre worried about some of these executive actions.

A spokesperson for ALEC did not respond to Grists requests for comment.

ALEC is a membership organization for state lawmakers and industry representatives that is best known for drafting model bills that are then picked up by state legislatures. Its bills have been linked to a number of state lawsdiscouraging clean energyandcriminalizing protests against pipeline projects. ALECs efforts to block climate progress, combined with itsalliance with right-wing groupsthat explicitly promote climate change denial, has led major corporations such as ExxonMobil, Royal Dutch Shell, Microsoft, and Google tocut ties with the group.

While its still too early to tell exactly what shape opposition to the Biden administrations climate proposals will take, the ALEC calls provide a few indications. On the calls, Ivory floated three potential ways for state lawmakers to present a united front against the Biden agenda: nullification, or passing state legislation to invalidate federal actions that states believe are unconstitutional; the initiation of a constitutional convention that would pass amendments giving states more power; and the passage of non-binding resolutions reaffirming the U.S. Constitutions Tenth Amendment, which declares that powers not explicitly granted to the federal government belong to the states, in state legislatures.

The states have to be able to speak with one voice, Ivory said. As John Adams said, The clocks all have to strike at one.

Political scientists who spoke to Grist doubted the likelihood of a constitutional convention or nullification actions, but they cautioned against underestimating the effects of passing resolutions at the state level and discussing ways to wrest power from the federal government.

Theyre providing the intellectual scaffolding for this elite movement, said Jacob Grumbach, a University of Washington political science professor who has studied ALEC closely. The moves are symbolic and help unify disparate camps within the conservative movementfrom anti-abortion groups to pro-gun groups and fossil fuel interestsby highlighting the shared benefits of more power at the state level, he said.

Grumbach noted that, during the Trump years, ALEC was less involved in the issues animating national politics than it had been during previous administrations, and it further cemented its position as a bill mill for state legislatures. ALECs federalism initiatives are already cropping up in state legislatures. Resolutions reaffirming the Tenth Amendment and ostensibly nullifying Bidens executive orders have been introduced in at least four statesIdaho,Texas,South Carolina, andMontanathis year, but they have not yet passed. The bills are based on a theory that states have the right to veto federal policies or declare them null and void within their borders if they believe they are unconstitutional. The theory has its roots in the antebellum efforts of some states to preserve slavery and has not been upheld in federal court.

Leah Stokes, a political science professor at the University of California, Santa Barbara, said that it was predictable that ALECs new federalism working group would be laser-focused on climate policy. (Editors note: Stokes was selected as aGrist 50 Fixerin 2020.) With theexodus of technology companiesfrom ALEC, many of the organizations remaining members are oil and gas interests.

Its not surprising to see the fossil fuel industry try to push back and weaken progress because they dont want us to get off fossil fuels, she said. They want to keep making profit and imperil the climate stability and the health of people all across the United States. Thats how they make money.

Read more here:

Leaked Calls Reveal ALEC's Secret Plan to Thwart Biden on Climate Mother Jones - Mother Jones

University of Chicago Press has just published "The Reconstruction Amendments: Essential Documents," a two-volume collection of original historical documents relating to the framing, ratification and public understanding of the Thirteenth, Fourteenth and Fifteenth Amendments to the American Constitution. Prior to this publication no such collection existed. In this and three additional posts, I will explain the theory behind the collection, the nature of the included documents, and how scholars can use the collection to teach a basic course on the Reconstruction Amendments. My thanks to Eugene Volokh and the folks here at the VC for giving me this opportunity.

Ten years in the making, the completed volumes contain over four hundred original historical documents which collectively tell the story of America's struggle to define and redefine the meaning of American freedom, national citizenship, constitutional federalism and the basic rights of all persons. Beginning with the antebellum public debates over slavery and the original Constitution, and ending with ratification of the Fifteenth Amendment, the two volumes open a window on the grand national debates which attended the second most important period of constitutional debate in American history. A great deal of this material, particularly documents relating to the ratification of the three amendments, has never before been published (or, in many cases, even identified).

The collection focuses on the public debates which drove and accompanied constitutional reconstruction. The extraordinary constitutional conversation that prompted the adoption of the three Reconstruction Amendments included the voices of presidents, governors, military officers, radical abolitionists like William Lloyd Garrison and Wendell Phillips, constitutional abolitionists like Lysander Spooner and Joel Tiffany, black civil rights activists like David Walker and Frederick Douglass, women's rights activists like Francis Watkins Harper, Susan B. Anthony, and Elizabeth Cady Stanton, pragmatist Republicans and obstructionist Democrats, the participants in freedmen's conventions and the equal rights conventions, southern newspaper editors and northern political scientists, as well as politicians like Charles Sumner, Thaddeus Stevens, James F. Wilson, James Ashley, John A. Bingham, Lyman Trumbull, Jacob Howard, and George S. Boutwell.

Volume One begins with the antebellum debates that set the stage for constitutional reconstruction. This includes antebellum debates over the nature of federalism, the role of slavery in the original Constitution, the meaning of citizenship, and the scope of national liberty. The second half of Volume One presents the legislative and public debates attending the framing and ratification of the Thirteenth Amendment. In my second post, I will describe some of the key documents in Volume One, including the first Thirteenth Amendment which would have constitutionally entrenched chattel slavery, and the extraordinary decision of the state of Wisconsin to nullify the federal Fugitive Slave Clause and invoke Madisonian federalism in support of anti-slavery state policy.

Volume Two presents the legislative and public debates over the framing and ratification of the Fourteenth and Fifteenth Amendments. These documents include not only the congressional debates (now word-searchable), but also the heretofore unavailable (or unknown) state ratification debates. Finally, I also have prepared a Teacher's Manual with a model syllabus and teaching notes for a fourteen-week course on the Reconstruction Amendments.

In my next post, I will discuss the theory and content of Volume One, The Antebellum Constitution and the Thirteenth Amendment. This will be followed by a post on Volume Two, and then a final word on the collection and the available teaching materials.

For now, I close with a word about the title, "Reconstruction Amendments: Essential Documents." In some cases, "essential" refers to the importance of the included documents themselves, such as the documents presenting the drafting debates of the Thirty-Ninth Congress.

In other cases, however, "essential" refers not to a particular document but to the essential importance of the issue discussed within that document. For example, for each amendment, I have included newspaper coverage of the framing and ratification efforts. These newspaper articles are meant to illustrate how closely the public was able to follow the framing debates, assess the arguments in favor of ratification, and consider the implications of failure or success. This contemporary public awareness is itself an "essential" aspect of constitutional reconstruction.

See the article here:

The Reconstruction Amendments: Essential Documents, a Follow-up to The Founders' Constitution - Reason