Reconstruction Constitution

Arguing for a close textual analysis of the Constitution normally is the domain of conservatives, but, as University of Michigan law professor Richard Primus points out in this week's New Republic, liberals can just as easily struggle with the difficulties of reconciling a text-based approach to the necessities of constitutional law. Primus has a lengthy, incisive critique of Akhil Amar's new book, America's Constitution: A Biography, in which Amar asserts the primacy of text--though not, a la Scalia, of the Founders, but instead of the authors of the Reconstruction amendments.

As the past generation of historians has reinterpreted Reconstruction, so too have they reinterpreted Reconstruction’s role in American law: I’ve used Foner’s book when I’ve taught constitutional history classes. Amar carries this line of thought to its logical extreme. As Primus notes, “Amar's theory is that of a radical democrat. In his eyes, the legitimacy of law is a function of its process of enactment: the more democratic the process, the more authoritative the law. Thus he contends that if a federal statute conflicts with the provisions of a treaty between the United States and a foreign country, the statute should prevail. His reasoning is straightforward. Treaties are made by the assent of the president and the Senate alone, but statutes also require the concurrence of the House of Representatives, a larger legislative body closer to the people themselves. An enactment of the House, Senate, and president together has more democratic authority than an enactment of the Senate and president without the House. By the same logic, the greatest of all authorities is the Constitution, which was enacted more democratically than any other law. Unlike statutes, which are passed by the people's elected representatives, the Constitution was adopted--so the story goes--directly by the people themselves.” Democracy, Amar contends, was subverted by the Founders; and only restored through the Reconstruction amendments. Accordingly, it is in amendments 13-15 that we should look for the essence of the Constitution’s meaning.

Amar is undoubtedly correct in the critical importance of the Reconstruction amendments specifically; and, more generally, the basic debates about the essence of American democracy that accompanied ratification of these amendments. Yet Primus points out some of the difficulties in contending that 13-15 represented the triumph of democracy. The North’s decision not to seat Southern congressional delegations and the peculiar ratification procedures of the 14th and 15th amendments were less than democratic---and even the polities that ratified the amendments excluded women and (in most states) free blacks from voting. Primus also points out some of Amar’s excessively clever use of text. For his part, Primus prefers a rights-based, living Constitution interpretation, with rights arising not out of textual interpretation but from the political context of the time.

A middle ground between the interpretations of Amar and Primus, and one that I find persuasive, is that offered by David Kyvig in Explicit and Authentic Acts. Kyvig contends that the amendment process signifies constitutional revolution—and that, therefore, we have witnessed three such revolutions in our history (the Bill of Rights, Reconstruction, and the Progressive Era). Fundamental constitutional change, in Kyvig’s view, cannot occur absent the amendment process—which provides the democratic legitimacy that Amar sees as critical and avoids interpretation of constitutional doctrine solely on short-term political context, as Primus contends frequently has occurred. Kyvig’s thesis, of course, elevates the Progressive Era (amendments 16-19) to critical importance, while downplaying the significance of the New Deal and even the 1960s.

The Primus review is definitely worth reading; thanks to my student, Eric Lee, for the tip.