Vol. 9 No. 12 (December 1999) pp. 544-546.
RECONSTRUCTING RECONSTRUCTION: THE SUPREME COURT AND THE PRODUCTION OF HISTORICAL TRUTH by Pamela Brandwein. Durham, North Carolina: Duke University Press, 1999. 283 pp.
Reviewed by Mark A. Graber, University of Maryland, Department of Government and Politics
American constitutional theory places enormous power in the hands of unelected historians. Distinguished legal and political science scholars proclaim with a straight face that whether elected officials may ban handguns, prohibit abortion, adopt affirmative action programs or boil people in oil depends largely on what historians think persons dead for over a century thought on these matters. Even Ronald Dworkin insists that had the persons responsible for the constitution of 1787 intended to deny the federal government the power to build highways and further intended that future generations be bound by their particular conception of federal powers, then the federal government in 1999 cannot build highways. Fundamental constitutional rights and powers are at stake, in this view, every time a constitutional historian proposes a revisionist account of the American past or even reads a hithertofore unknown letter by James Madison.
Brandwein's RECONSTRUCTING RECONSTRUCTION offers a welcomed, if somewhat underdeveloped, critique of this common recourse to history for answers to contemporary constitutional questions. Professor Pamela Brandwein observes that originalism of any form cannot provide the objective standards for constitutional adjudication that legal scholars of numerous political persuasions desire. Her study successfully points out that "versions of legal history and original understanding have been socially constructed" (p. 18), that "descriptions of" crucial constitutional "events are contested ground" (p. 3), not eternal truths. Constitutional historians necessarily rely on normatively loaded conceptions that determine "where they look for evidence of `original understanding,' when in history they beg[i]n looking, and how they kn[o]w when they have found it" (p. 99). Justices who rely on history, therefore, necessarily rely on works that are no more objective than justices who more openly deploy moral principles in their decision making process. One might add that even if objective historical standards exist, a point hotly disputed among historians, judges are rarely well placed to assess what histories or whose histories are better than others.
Professor Brandwein develops her thesis using an able study of how Americans from Reconstruction to the present have understood the events responsible for the passage of the post-Civil War Amendments. She is particularly interested in how the northern Democratic (I would say conservative Republican) understanding of the Fourteenth Amendment became received judicial wisdom for more than one hundred years. RECONSTRUCTING RECONSTRUCTION (great title!) correctly points out that the evidence does not overwhelmingly support Justice Miller's
Page 545 begins here
claim in THE SLAUGHTER-HOUSE CASES (1873) that the persons responsible for the Civil War Amendments did not intend to change substantially antebellum understandings of the relationship between the states and the federal government. Owing in large part to influential works by Michael Kent Curtis and Akhil Amar, conventional wisdom may now be that the Fourteenth Amendment was intended to incorporate most if not of all the provisions of the Bill of Rights. Professor Brandwein and other scholars have demonstrated that many Republicans had a more radical understanding of slavery and the constitutional means necessary to destroy slavery than that expressed in the first Supreme Court opinions interpreting the new Constitution. Given the ease with these more radical understandings of the Civil War Amendments can be found in the CONGRESSIONAL GLOBE, Brandwein appropriately wonders why for nearly one hundred years, Justice Miller's more conservative understanding reigned as almost unquestioned law and largely uncontested legal wisdom.
That book offers two explanations for the hegemony of conservative Republicanism in Fourteenth Amendment historiography. The first is political. When radical Republicans fell from power during the early 1870s, the more conservative justices on the Supreme Court highlighted alternative understandings of the Civil War to tame the more radical implications of early reconstruction. Professor Brandwein further maintains that the members of the legal process school such as Charles Fairman, who during the 1940s defended precedents rejecting incorporation of the Bill of Rights, were committed "to local democracy and state autonomy in matters of citizenship" (p. 105). The second reason was legal. Brandwein's' RECONSTRUCTING RECONSTRUCTION points out that members of the legal process school were constitutional "catholics" (p. 112) who believed that Supreme Court decisions were ultimate sources of law. These intellectual commitments led them to emphasize judicial opinions as the best source for the original understanding of the Fourteenth Amendment and discount the extra-legal sources in which the more radical understandings of constitutional change were articulated. Moreover, the leading members of the legal process school were New Dealers determined not to repeat the LOCHNER mistake. Courts, Fairman and his supporters agreed, should not be in the business of dictating social policy.
The best chapter of this book explores in depth the debate between Charles Fairman and William Crosskey over whether the Fourteenth Amendment incorporated the Bill of Rights. Professor Brandwein raises an interesting and important question when she asks how two such distinguished scholars could reach such diametrically opposed conclusions. The traditional answer is that one, usually Crosskey, was flat wrong if not incompetent. Her book provides a much better answer. Fairman and Crosskey reached different conclusions about legally relevant history because they had different legal understandings of what constituted the relevant legal history. Fairman looked for history in black letter legal texts, mostly judicial opinions. Crosskey placed far more emphasis on the political commitments of the radical Republicans who pushed for the Fourteenth Amendment. These different historical perspectives, in turn, were grounded in different normative
Page 546 begins here
understandings of law. Fairman believed that neutral courts were the primary oracles of constitutional meaning, that antebellum abolitionist and radical Republican claims about the Bill or Rights were best understood as irresponsible political rhetoric. Crosskey, more sympathetic with electoral officials, was far more inclined to understand such persons as John Bingham as articulating coherent constitutional visions.
Professor Brandwein is less convincing when she attempts to provide a link between Northern Democratic understandings of the Fourteenth Amendment and racial subordination during the twentieth century. Race issues clearly motivated those late nineteenth century justices who sought to limit both federal legislative and federal judiciary power. The significance of race in the twentieth century is more complicated. To begin with, members of the legal process school were far more interested in limiting federal judicial power than federal legislative power. They were New Dealers on both economic and racial issues. Thus, both the Supreme Court and most constitutional commentators in the 1960s supported federal legislation promoting racial equality. Fairman also defended the result in BROWN v. BOARD OF EDUCATION (1954) in an article published by the HARVARD LAW REVIEW the year that case was decided. This suggests a willingness to defend civil rights when racial inequality issues were explicitly raised. The problem with Warren Court decisions, from the perspective of much post-New Deal constitutional commentary, was a failure to make explicit the racial issues embedded in many cases. Warren Court justices were loath to use the language of intentional racial subordination, even when advancing the rights of persons of color. In an effort to appease the South, the justices abjured the most persuasive constitutional grounds for their holding. This, however, is less a question of inadequate history, as Brandwein suggests, than misguided politics.
Brandwein's book would also have benefited by paying more attention to the "so-what" question. At the very same time that Fairman's history reigned in the academy, the Supreme Court began incorporating most of the liberties set out in the Bill or Rights. During the past decade, historians have become more sympathetic to radical Republican histories of the Fourteenth Amendment, but this has hardly coincided with a left-wing shift in judicial thinking. Readers of RECONSTRUCTING RECONSTRUCTION may decide that these academic fights over the meaning of crucial constitutional events has little impact on actual judicial politics, that who won the latest election has a good deal more to do with judicial trends than whose work is getting positively cited in the law reviews. A good deal more that can be said on behalf of the war of ideas. One might ask, for examples, why liberals remain wedded to incorporation even when the Rehnquist court is more likely to use national judicial power to void affirmative action or environmental policies than protect persons of color. One might also ask why proponents of legal process genuinely committed to racial equality required the judicial to seek that goal in limited ways. These and related questions remain underdeveloped in what is otherwise an interesting book.
Copyright 1999 by the author.