The Reconstruction Amendments: The Essential Documents, Volumes 1 and 2 by Kurt Lash

Now available in Print and on Kindle

My good friend Kurt Lash has published The Reconstruction Amendments: The Essential Documents, Volumes 1 and 2. Kurt has put together all of the relevant documents to understand the ratification of the 13th, 14th, and 15th Amendments. Truly, his effort is remarkable. Here is the blurb:

Ratified in the years immediately following the American Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote, respectively. This two-volume work presents the key speeches, debates, and public dialogues that surrounded the adoption of the three amendments, allowing us to more fully experience how they reshaped the nature of American life and freedom.

Volume I outlines a broad historical context for the Reconstruction Amendments and contains materials related to the Thirteenth Amendment, which abolished slavery, while Volume 2 covers the Fourteenth and Fifteenth Amendments on the rights of citizenship and enfranchisement. The documents in this collection encompass a sweeping range of primary sources, from congressional debates to court cases, public speeches to newspaper articles. As a whole, the volumes meticulously depict a significant period of legal change even as they illuminate the ways in which people across the land grappled with the process of constitutional reconstruction. Filling a major gap in the literature on the era, The Reconstruction Amendments will be indispensable for readers in politics, history, and law, as well as anyone seeking a better understanding of the post–Civil War basis of American constitutional democracy.

This seminal work should reside on every (virtual) bookshelf. The book is not cheap, but is well worth the cost. I have already used a pre-publication copy in some of my research. We all owe Kurt a huge debt.

Comments

[Brett Bellmore]

Whoa. I bought my son the combined Federalist and Anti-Federalist papers, but this is a bit rich for me.

[ThePublius]

It's a typical textbook ripoff scheme.

[Queen Amalthea]

Yeah, I actually agree with the Pub here. The market is 1. institutional libraries and 2. students who are mandated to get the text by their teachers.

[Alpheus W Drinkwater]

3. Friends of the editor who have to bang out 4 blog posts per day.

[Nick Gillespie's Jacket]

$175 for each volume?? Yikes.

[DaivdBehar]

The words, person or equal, are not hard vocabulary words. Yet, the Supreme Court had trouble understanding them. Is a female a person? I think so. They read the minds of the Congress, instead of reading the writing of the Congress. They said the vote was for black males not for women. The word equal means, the same. Yet for 100 years, they treated black people differently. It continues today, every day this toxic profession controls the three branches of government.

[RabbiHarveyWeinstein]

>this toxic profession controls the three branches of government
The trains run on time in the Vatican but the schedules are only published in Latin.

[Queen Amalthea]

Are corporations persons? Human zygotes? Does equal mean treat all the same or treat similarly situated the same? Only a simple person finds these to be simple questions.

[DaivdBehar]

Your complications are to promote rent seeking procedure, and a form of lawyer fraud. The meaning of a word is the dictionary definition.

[cMh]

Why are such books so ridiculously expensive? Is it because the assumption is that the primary purchasers will be law firms or libraries? Such an assumption might justify high prices for hardcopies, but nothing I can think of justifies such a high price for a Kindle version.

[DaivdBehar]

It would be justified if the authors got paid for all the work they did. They probably do not. They got a learning experience and an item in the academic resume.

[MatthewSlyfield]

The authors would probably make more money at 1/10th the price because at $175 per copy they will probably sell only a few hundred copies.

On the other hand, at $17.50 they could sell two or three orders of magnitude more copies.

[DaivdBehar]

They should self publish on Amazon at $19.95, all going to themselves. Get more readers, and make far more money for their effort. Books cannot be given away. They are all going to paper recycling.

[bernard11]

I'm not sure I agree, Matthew.

I suspect the market is pretty limited, and not all that price-sensitive. If they can sell 500 copies at $350 (for the set), would they really sell 5000 at $35.00?

And if they did sell 5000 they would be worse off, after allowing for printing and distribution costs. Does anyone know what those costs are likely to be?

[Brett Bellmore]

What are the printing and distribution costs for the Kindle edition? Pretty low, I'd guess.

[bernard11]

True, but you have to be careful.

If you price the Kindle edition too low no one will buy the hardcover. I suspect that has more to do with the Kindle pricing than anything else.

[ThePublius]

It’s a typical textbook ripoff scheme.

[M L]

All law school textbooks/casebooks are this way. Actually this is cheap.

[Soronel Haetir]

I have long found it amazing there isn't a greater discount when purchasing electronic copies of even regular books. Oh well, the days of the traditional fiction publisher are numbered.

[QuantumBoxCat]

After looking through the Table of Contents for Volume I, I'd estimate that roughly 90% of the primary sources that are listed are available for free online. Lash simply collected the sources that he believed were important, put them together in one place, and then added his own interpretative essays.

So, you could pay $175 for his essays and for him doing the work of putting the sources together, or you could just look at the Table of Contents on Amazon and Google your way to a majority of the material.

[Syd Henderson]

I found a similar book about the congressional debate quite a few years ago (I think during the Clinton impeachment). It's really worthwhile to read Belknap's presentation to the Senate, and yes, he really did intend to extend most of the Bill of Rights to the states.

It was interesting that Daniel Webster defended South Carolina refusing to let free blacks off commercial vessels from the North. (Some background documents went decades back). There was also a congressman (or Senator) who was appalled that the 14th Amendment might apply to Chinese immigrants.

[M L]

Yes, Senator Edgar Cowan grumbled over the citizenship clause in racial terms, essentially bemoaning the fact that it would apply in a race-neutral manner.

[Brett Bellmore]

Yes, there's not really any question that the 14th amendment was intended to incorporate against the states Amendments 1-8, and via the P&I clause.

It's shameful that the Court prevented that way back when, and almost as shameful that, when they finally were inclined to undo the damage, they couldn't bring themselves to just directly overrule the Slaughterhouse cases, but instead invented that famous oxymoron, "substantive due process".

And then treated the Bill of Rights like an ala carte menu.

[M L]

Well, there is a question actually. One that has been debated in numerous volumes over many years. It's true that one side of the argument seems to be rather dormant in recent decades.

https://lawliberty.org/classic/the-coming-resurrection-of-raoul-berger-a-remembrance-of-government-by-judiciary/

[Brett Bellmore]

It's dormant because we've got Congress's actual words available to us.

[M L]

Yes, those words are what the debate was centered on.

[Brett Bellmore]

I'd have to see the argument that the amendment wasn't intended to incorporate amendments 1-8 via the P&I clause. I'm certainly familiar with the evidence that it was.

[Seamus]

Back in the 1960s, the Virginia Commission on Constitutional Government (created by the General Assembly to make the legal and intellectual case for Massive Resistance) issued a compilation of "The Reconstruction Amendments Debates." It was primarily meant to provide primary-source evidence that the framers of the 14th Amendment had no intention of outlawing things like racially segregated schools or miscegenation laws, but its usefulness goes far beyond that. I can't judge whether the editors actually compiled the entire relevant legislative history, but that at least was their declared purpose. I'd be interested in hearing how its selections compare with those in this latest compilation

[M L]

Another fun fact about the 14th amendment....it was never constitutionally ratified (unlike the 13th).

[BigChiefWahoo]

Hey! Pay attention! Didn't you hear our wise president when he asserted that none of the Amendments were absolute?

[Queen Amalthea]

Also the same Congress passed legislation to explicitly help blacks.

That one might not be so fun for you actually...

[bernard11]

Fun fact about the 14th Amendment…the same Congress that ratified it also set up a segregated school system in Washington DC and also thought that only men should marry women.

And this is relevant to what? And how do you know what they thought about SSM, or that they even thought about it at all?

[DaivdBehar]

Tell us more about what you mean.

[Brett Bellmore]

It was 'ratified' at gunpoint. I mean, literally, some of the state legislatures in the South had armed soldiers in the chamber when they voted on it. And they were told that either they ratified, or they remained conquered territory under military occupation.

[M L]

You can read about it here.

https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf

III. Conclusion

It seems quite clear that the Fourteenth Amendment was not ratified, if proposed, even loosely within the text of Article V of the Constitution. Article V does not give Congress the power to deny a state representation in Congress without its consent. In fact, it prohibits such conduct. Nor does Article V give Congress the power to abolish a state government when it refuses to ratify a proposed amendment. And certainly, Article V does not allow Congress to deny a state its representation until it ratifies a desired amendment.

Furthermore, Article V is the only way the Constitution can be
amended...

So, if the Constitution can only be amended through Article V, and
the Fourteenth Amendment was not ratified properly under that article, what is its status? It seems as though this question can only be answered in one way.

[Seamus]

Congress tried to have it both ways: the former Confederate states weren't to be treated as states for purposes of representation in Congress, yet they were for purposes of ratification of the 14th Amendment.

Why, you may ask, didn't they just disregard the Confederate states in the denominator as well as the numerator for purposes of determining when 3/4 of the states had ratified? Because there weren't enough Northern states willing to ratify the 14th Amendment.

[Rev. Arthur L. Kirkland]

"And they were told that either they ratified, or they remained conquered territory under military occupation."

Sounds like better treatment than they deserved.

The losers, bigots, and traitors should have remained a string of unincorporated territories along our southern border.

Imagine an America with no senator from Mississippi or South Carolina, no Electoral College delegates from Tennessee or Louisiana, no House of Representatives members from Alabama or Arkansas.

[bernard11]

Seems like a rather mild thing to insist on in exchange for readmission to the union.

The South, and especially its oligarchical class, got off pretty lightly, I'd say.

[Queen Amalthea]

"I mean, literally, some of the state legislatures in the South had armed soldiers in the chamber when they voted on it."

Wouldn't mind seeing a sight for this claim.

[Brett Bellmore]

The states in question didn't WANT readmission to the union, remember? They wanted independence.

If the alternative to readmission with ratification had been independence, it would indeed have been a mild thing to insist upon.

As the alternative was continued military occupation and governance, and jail for the legislators who voted against ratification?

No, it was just extortion.

[Brett Bellmore]

To be clear, I'm not asserting here an opinion about whether it was a bad thing to do; I rather approve of the Reconstruction amendments.

I'm just explaining the basis for ML's assertion that the 14th amendment wasn't constitutionally ratified: Too many of the states that voted to ratify didn't have any actual choice.

[Rev. Arthur L. Kirkland]

The solution would have been to establish unincorporated territories (resembling Puerto Rico) and avoid any choice for the vanquished racists.

[bernard11]

The states in question didn’t WANT readmission to the union, remember? They wanted independence.

Then they should have won the war.

It doesn't make much sense to go to war to achieve something, lose, and then complain because the winners won't give you what you wanted.

IOW, what they wanted wasn't on offer. Not to mention that independence wasn't actually their prime objective - maintenance of slavery was.

[Brett Bellmore]

Except the 16th, that's totes absolute.

[Krychek_2]

You mean like New Yorkers and Californians not having any real choice in their government because of anti democratic institutions like the electoral college and two senators per state?

To be clear, I'm not making a merits argument (at least not in this thread). I'm just pointing out how awfully selective conservative support for democracy is. Effectively disenfranchising millions of California and New York voters; that's fine. Unelected federal judges, or coerced ratification of Reconstruction amendments; that's unbearable.

So please be consistent. You either support democracy or you don't.

[Brett Bellmore]

The point is, the Reconstruction amendments were not ratified in normal order, they were, literally, ratified at gun point.

An alternative that was a little less hinky would have been for the North to have admitted the Southern states had actually left the United States, ratify the amendments on their own, and THEN offer the conquered foreign territories the choice of admission to a US that already had those amendments ratified, or continued military occupation.

But the North's politicians were very much in a "have it both ways" mode on whether the South had stopped being part of the federation during the war, and this approach would have required admitting they'd gone on a war of foreign conquest.

[Brett Bellmore]

Yeah, I get that the civil war history taught in many K-12 institutions is pretty thin gruel, and largely white-washes Northern conduct. I had a Civil war buff for history teacher in HS, it was everything else that was thin gruel. 😉

Neither side in that war covered themselves in glory, and for the whole period the Constitution was largely on hold.

Reconstruction amendments. They replaced the lawfully elected governments of the Southern states, and would not recognize any government that didn't ratify the 14th amendment.

[Brett Bellmore]

No, more like, soldiers literally standing in the legislative chamber saying, "Vote 'yes' on the amendment, or you'll be replaced by the next guy in line."

Only one Southern state didn't categorically reject the 14th amendment, so Congress dissolved their governments, and had the Army replace them with puppet governments that then 'ratified' it.

[Krychek_2]

A difference in degree but not in kind. In both instances, the majority is being disenfranchised. And once you've been disenfranchised, whoever disenfranchised you will use guns to enforce their will if it comes to that.

[Brett Bellmore]

Yes, it's exactly the same thing aside from not having any choice about how to vote because you've literally got an occupying army replacing your government with a puppet government.

[Krychek_2]

And you've literally got an electoral college and two senators per state depriving millions of New Yorkers and Californians of any real say in government.

Brett, unless and until you care about disenfranchising blue states, I'm not hearing any complaints you have about anyone else who may have been disenfranchised, or how. And again, this is not about the merits of whether the EC is a good idea; it's about the double standard of you like democracy except for when you don't.

[Brett Bellmore]

I'll start caring about disenfranchising blue states when somebody disenfranchises them, not before.

[Brett Bellmore]

Remember, the Union was operating under the fiction that the Southern states hadn't legally seceded, and so were still states of the union, only in rebellion.

The problem was that, as legally states in the union, they had a variety of constitutional protections, which the Union proceeded to grossly violate.

In order to pursue the course you suggest, they would have had to have given up the fiction that the Southern states were still legally part of the US, and acknowledged that they were engaging in a foreign war of conquest.

That would have been the honest thing to do, but they weren't in a mood to be honest about what they were doing.

[Brett Bellmore]

Like they say, hard cases make bad law. A civil war is the ultimate hard case.

I've actually seen left-wingers argue that the precedent on how the reconstruction amendments were ratified is good precedent, and it would be legal for Democrats to amend the Constitution in the same manner today, expelling the delegations from uncooperative states, and refusing those states Congressional representation until they ratified some amendment.

I point out to them you only get away with that sort of thing if you've just won a civil war, because otherwise, if you try it, you GET a civil war.

[bernard11]

The War of Northern Aggression, was it?

[bernard11]

I get that the civil war history taught in many K-12 institutions is pretty thin gruel, and largely white-washes Northern conduct.

Whitewashes Northern conduct?? What an amazing claim. Until fairly recently Civil War history, especially as taught in the South, did more than "whitewash" the Confederacy - it spread falsehood after outright falsehood about it, its aims, its leaders, and its conduct.

[bernard11]

I’ve actually seen left-wingers argue that the precedent on how the reconstruction amendments were ratified is good precedent, and it would be legal for Democrats to amend the Constitution in the same manner today, expelling the delegations from uncooperative states, and refusing those states Congressional representation until they ratified some amendment.

Right, Brett. Maybe some lunatic argued that, but if you are seriously claiming it's a view that is held by even a significant minority of liberals you're nuts - your paranoia is getting to you again.

[Brett Bellmore]

Objectively, it was.

That doesn't mean the Southern states had a good reason for seceding. On the contrary, their reason for doing it was horrific.

But the fact remains, and we've been over this before, all the South did was secede. It was the North that started the war.

[Brett Bellmore]

I was taught Civil war history in Michigan, which is hardly a Southern state. And, yes, the history classes did tend to downplay the extent to which the North committed war crimes, and pursued the war for less than noble reasons.

[Brett Bellmore]

Why, no, I wouldn't claim that a majority of leftists would currently advocate that position. Merely that I have encountered leftists who would.

I wouldn't personally count on a majority of leftists not advocating that position if application ever became a realistic prospect, though.

[Seamus]

What both examples show is that the way the 14th amendment is interpreted has little to do with the intention of its framers. Which is no wonder, since those framers used highly ambiguous language to implement their intentions, and ever since then, the courts have been trying to come up with a consistent interpretation that makes sense and is acceptable to the American people.

(BTW, the use of the P or I clause to incorporate the Bill of Rights might make sense as a consistent interpretation, but it wouldn't be acceptable to the American people, because it would leave the states free to deny, say, freedom of speech or the right to jury trial, to non-citizens.