William & Mary Bill of Rights Journal
Abstract
The following pages [compare] a stroll down the Reconstruction section of memory lane with a tour of a historical restoration dedicated to reproducing the Constitution of December 11, 1865. Part I strolls down the Reconstruction section of memory lane by elaborating the conventional legal account of what Republicans were thinking when they sought to improve the Thirteenth Amendment’s Constitution immediately after the ratification of the constitutional ban on slavery was assured. Their most vital and often sole concern, legal opinions from the Slaughter-House Cases to Students for Fair Admissions v. Harvard agree, was to alleviate doubts among anti-slavery advocates about whether the federal government was authorized to protect persons and property in the (former confederate) states. Most contemporary scholars walk that walk. Witness the percentage of contemporary scholarly books and articles with “The Fourteenth Amendment” in the title that discuss only the rights provisions in Section One. Part II tours a historical restoration by examining all available online American newspaper accounts published on December 11, 1865, that discuss the constitutional reforms Republicans considered when seeking to improve the Thirteenth Amendment’s Constitution after ratification of the constitutional ban on slavery was assured. Section II.A highlights the strong-felt need to improve how constitutional politics was configured by changing the rules for apportioning representatives and votes in the Electoral College, some felt need to adjust how constitutional politics was created by repealing the ban on export duties in Article I, Section 9, but little detectable interest in empowering Congress to protect certain fundamental rights of persons and property. Section II.B continues the tour of the historical restoration by considering the most frequent republished item in December 11, 1865, newspapers, the decision of a federal court in Kentucky to dismiss an indictment against Major General John Palmer of Kentucky for assisting alleged fugitives from slavery and General Palmer’s subsequent circular declaring all discriminations against persons of color in Kentucky void. This exhibit, combined with an exhibit detailing Southern opposition to broad readings of Section Two of the Thirteenth Amendment, helps explain why Republicans were so interested in apportionment reform and not at all interested in providing additional congressional power to protect fundamental rights. Palmer and Republican newspapers thought the passage of the Thirteenth Amendment gave persons of color all the rights of free citizens. Bingham’s proposed amendment added nothing to that Constitution. What mattered was apportionment reform that ensured Republicans exercised existing powers, not rights reform that gave Republicans in Congress no new powers. Part III provides reasons why this study in American constitutional development matters, apart from questions about how the Constitution should be interpreted. We might better understand the pathologies and possibilities of rights protection in our time by understanding why Republicans (and Federalists) insisted that the most fundamental protection for constitutional rights were institutions prone to protect those rights rather than entrenched parchment barriers.
This abstract has been taken from the author's introduction.