Reconstructing Reconstruction: The Supreme Court and the Production of
Durham, N.C. and London: Duke University Press, 1999. xi + 272 pp. Notes,
bibliography, index. $17.95 (cloth), ISBN 0-8223-2316-8 .
Bryan H. Wildenthal , Thomas Jefferson School of Law, San Diego,
Civil War Without End:
The Sociology and Synergy of Law and History
There is an old saying that histories are written by the
winners of wars, to which one might add a Yogi Berra-style corollary that
no war is ever really over, nor ever finally "won," until the last
historian has had her say. And it is doubtful that will ever happen, while
academia endures. Pamela Brandwein is a sociologist, not a historian or
lawyer, but her book Reconstructing Reconstruction is one of the
finest meditations on history and law in recent years.
The Civil War, though ended on the battlefield in 1865, has
continued to be refought by (among others) Supreme Court Justices, legal
scholars, and historians. Bullets and cannonfire have given way to
competing historical accounts of what the war was about and the meaning of
slavery's abolition, and to competing interpretations of the war's
constitutional legacy, the Reconstruction Amendments (most especially the
Brandwein focuses on three aftershocks of this greatest
national trauma the United States has ever experienced: debates among
politicians and Supreme Court Justices during the 1860s and '70s, among
Justices and legal scholars in the 1940s and '50s, and on the Court of the
1960s. The bone of contention in each was the meaning of the Fourteenth
Amendment. She begins by discussing the postwar debate between Republicans
and Northern Democrats (united during the war against the Southern
rebellion) over what it meant to truly abolish slavery, which was formally
(at least) accomplished by the Thirteenth Amendment in 1865.
This debate over "slavery history" was seemingly resolved
by the 1868 ratification of the Fourteenth Amendment, premised on the
Republican notion that true and complete abolition required federal
guarantees of citizenship and fundamental rights for all (including the
freed slaves) against any renewed tyranny by the states. But, as Brandwein
chronicles, the Democrats won a partial, rearguard victory when the
Republican-dominated Court of the 1870s construed the Reconstruction
Amendments narrowly by accepting and promoting, to a large degree, the
Northern Democratic version of what the war and abolition meant.
The centerpiece of Brandwein's work is a study of the epic
scholarly debate between Charles Fairman and W.W. Crosskey over whether
the Fourteenth Amendment was intended and understood in 1866-68 to extend
("incorporate") the Bill of Rights against the states. Justice Hugo
Black's famous dissent in Adamson v. California (1947) came
within a single vote on the Court of achieving "total incorporation" of
the Bill of Rights. Fairman wrote an influential article in 1949 attacking
Black's historical argument, and Crosskey responded in defense of
Black, primarily in a 1954 article. Brandwein rounds out her book with
a look at the Court's hotly disputed decisions in the 1960s, relying in
part on the Fourteenth Amendment, to require federal and state legislative
reapportionment on the principle of "one person, one vote."
Recent legal scholarship, building on the vast modern
"revisionist" historiography of Reconstruction, has (in this reviewer's
opinion) decisively discredited Fairman's thesis and provided long-overdue
vindication to Crosskey. Brandwein's purpose, however, is not to offer
her opinion of the rightful "winner" of any of these post-Civil War
"aftershock" battles. Rather, she is concerned with exploring, from a
sociological perspective, how the conduct and outcomes (as perceived at
the time) of these battles were influenced by the social construction of
competing versions of historical "truth."
Brandwein brilliantly illuminates the synergistic
interaction of history with law: how history molds law, and in turn, law
molds history. More specifically, she shows how certain legal regimes
(such as interpretations of the Fourteenth Amendment on the 1870s Court)
flowed not just from underlying historical events, but from the Court's
adoption of certain accounts of that history, and its rejection of others.
She explores the links between the version of slavery history adopted by
the 1870s Court and the white-supremacist belief systems of the post-Civil
War Northern Democrats. She then shows how this dominant historical
account, once entrenched, affected the debates on the Court, and between
Fairman and Crosskey, almost a century later.
Brandwein's analysis also points to how the outcomes of key
legal debates affect, in turn, the subsequent flow of historical events.
Certainly American history would have moved along a very different path
had the 1870s Court constructed a broader and more powerful regime of
Fourteenth Amendment law. Nor would we have had to wait until the 1960s to
witness the vindication of many of the noblest aspirations of the
post-Civil War Republicans, had Justice Black had one more vote in 1947.
Brandwein is at her best in "emphasizing the complexity of
the dynamics that regulate exchanges between past and present (i.e.,
inquiries into the past and the effects of past practices on present
arrangements)" (p. 209). She makes extensive use of "frame" analysis to
show how the outcomes of important legal debates have been contingent on
the frameworks of assumptions and beliefs brought to the debates by their
participants, and embraced by the legal establishments that have
adjudicated the "winners" of such debates. (See, e.g., pp. 96-102.)
While, as noted, Brandwein does not purport to offer her own verdict on
the merits of such debates, she does not shy away from concluding that the
dominance of Fairman's account for so many decades cannot primarily be
attributed to "the intrinsic merits of his argument" (p. 15). Rather (as I
would phrase it, relying on Brandwein's insights), Fairman's account fit
far better than Crosskey's with the prevailing beliefs and assumptions of
their time. For us legal scholars who do not shy away from rendering
verdicts on the merits of such debates, I cannot resist adding that
Crosskey's account fits far better with the beliefs and assumptions
prevailing among the Civil War-era Republicans who actually proposed and
secured the ratification of the Fourteenth Amendment.
Brandwein, nonlawyer that she is, displays impressive
insights into legal arguments. Her work has much to offer "legal scholars"
as traditionally defined (i.e., law school professors), as well as
scholars in other disciplines concerned with law. Legal scholars ignore at
their peril the growing wave of legal studies by scholars outside law
school academia, in fields such as history and political science.
Brandwein has emphatically secured the place of sociology among those
Just one example of Brandwein's perceptiveness about law is
that she cuts through the sometimes sterile and binary debate about just
how far-reaching the post-Civil War Republicans intended and understood
the Fourteenth Amendment to be. Brandwein correctly questions the
presumption that any "vigorous Fourteenth Amendment jurisprudence"
requires "evidence that Republicans intended to eviscerate the traditional
federal system" (p. 5) -- and, conversely, the presumption that evidence
of Republican attachment to the traditional federal system is inconsistent
with, for example, Republican support for incorporation of the Bill of
Rights. The Republicans, as she notes, seem to have intended a partial
modification of the federal system, substantially expanding federal power
to protect basic rights of citizenship, while also adhering to the
traditional federal-state balance in most other ways (see pp. 5-6,
Brandwein missteps occasionally. For example, in discussing
approaches to constitutional interpretation, she conflates "originalism"
with "textualism," and distinguishes "original understanding" from
"original intent" approaches, in a somewhat mistaken and confusing way
(see pp. 16-17, 212). She asserts that "originalists" -- those who place
primary importance on uncovering the original, historical understanding of
constitutional text at the time it was adopted -- generally disdain
inquiries into legislative history (such as congressional debates over
proposed constitutional amendments), while proponents of "original intent"
would (of course) pursue such inquiries. She is right about "original
intent" theorists, and that there is a distinction between "intent" and
"understanding," and that some "textualists" (though often allied with
originalists) might be skeptical of legislative history.
But "originalism" is an umbrella term encompassing the
"intent" and "understanding" approaches. Proponents of "understanding"
focus less on the subjective intentions of those who drafted new
proposals, and more on how such proposals were understood at the time by
those (politicians, lawyers, and voters generally) who debated and adopted
them. But originalists of all stripes (and many textualists) typically
grant heavy importance to legislative history, because debates in Congress
may be an excellent guide (and often the best extant source) as to how
proposed constitutional text was contemporaneously understood. And
contrary to Brandwein's suggestion (p. 212), such "historical appeals"
are "explicitly made today" (in very important ways) by the Rehnquist
In discussing the 1870s Court's narrow view of the
Fourteenth Amendment, Brandwein accepts without question the
long-prevailing conventional view that Justice Samuel Miller's majority
opinion in the Slaughter-House Cases (1873) rejected
incorporation of the Bill of Rights, thereby making a "dead letter" of the
Fourteenth Amendment Privileges and Immunities Clause (see pp. 61, 67-68).
But as a few modern legal scholars have contended, Slaughter-House
need not be read so narrowly, and may not have been so read at the time it
was decided. Finally, when it comes to writing style, Brandwein gets
bogged down occasionally in dense and convoluted jargon.
But these criticisms are relatively minor and quibbly in
comparison to the many strengths and important contributions of
Brandwein's work. She has made a giant and pioneering stride toward
developing, as she calls it, "a sociology of constitutional law" (see pp.
185-207). And for that, scholars in any field who are concerned with law
should be grateful.
. 332 U.S. 46, 68 (1947).
. Charles Fairman, "Does the Fourteenth Amendment
Incorporate the Bill of Rights?: The Original Understanding," Stanford
Law Review 2 (1949): 5.
. William Winslow Crosskey, "Charles Fairman,
'Legislative History,' and the Constitutional Limitations on State
University of Chicago Law
22 (1954): 1.
. See, e.g., Baker v. Carr, 369 U.S. 186
(1962); Wesberry v. Sanders, 371 U.S. 1 (1963); Reynolds v. Sims, 377 U.S.
. For many years, a dominant school of American
historiography (identified with William Dunning) portrayed Reconstruction
essentially as a vengeful victimization of the South, and discounted
Republican efforts to secure the rights of the freed slaves. See
pp. 13-14, 115, 218 n.21; see also, e.g., W.E.B. DuBois
(David Levering Lewis, ed.), Black Reconstruction in
New York: Macmillan, 1992), at 711-28. Modern accounts of Reconstruction
(of which DuBois's heroic work was the pioneer) provide a more balanced
treatment of Republican goals and accomplishments, and break free of the
white-supremacist premises of the Dunning School. See, e.g.,
Kenneth M. Stampp, The Era of Reconstruction: 1865-1877 (New York:
Alfred A. Knopf, 1965); Eric Foner, Reconstruction:
(New York: Harper & Row, 1988); John Hope Franklin, Reconstruction
After the Civil War, 2d ed. (Chicago: University of Chicago Press,
. See, e.g., Michael Kent Curtis, No State
Shall Abridge: The Fourteenth Amendment and the Bill of Rights
(Durham, NC: Duke University Press, 1986); Akhil Reed Amar, The Bill of
Rights: Creation and Reconstruction 137-230 (New Haven: Yale
University Press, 1998), 137-230; Richard L. Aynes, "On Misreading John
Bingham and the Fourteenth Amendment," Yale Law Journal 103 (1993):
57; Bryan H. Wildenthal, "The Lost Compromise: Reassessing the Early
Understanding in Court and Congress on Incorporation of the Bill of Rights
in the Fourteenth Amendment," Ohio State Law Journal 61 (forthcoming
2000); Bryan H. Wildenthal, "The Road to Twining: Reassessing the
Disincorporation of the Bill of Rights," Ohio State Law Journal 61
(forthcoming 2000). But see, e.g., Raoul Berger, The
Fourteenth Amendment and the Bill of Rights_ (Norman: University of
Oklahoma Press, 1989).
. For example, two political scientists from whose work
on law I have benefitted are Howard Gillman (see, e.g., The
Constitution Besieged: The Rise and Demise of Lochner Era Police
Powers Jurisprudence [Durham, NC: Duke University Press, 1993]) and
Mark Graber (see, e.g., "The Constitution as a Whole: A
Partial Political Science Perspective", University of Richmond Law
Review_ 33 : 343).
. I develop a similar point in the first of my
forthcoming articles on the Bill of Rights "incorporation" debate, which
analyzes evidence that even diehard Southern Democrats united with
Republicans, in the early 1870s, in support of total incorporation of the
Bill of Rights, as a minimum, consensus interpretation of the Fourteenth
Amendment. See Wildenthal, "Lost Compromise," supra note .
. Justice Scalia, whom Brandwein correctly cites as both
an originalist and a textualist (p. 16), does have a well-known aversion
to reliance on legislative history (of statutes, anyway). One of Scalia's
better bon mots is his quip, in Wisconsin Public Intervenor v.
Mortier, 501 U.S. 597, 621 (1991) (Scalia, J., concurring in the
judgment), that "we are a Government of laws, not of committee reports."
Incidentally, Scalia (a hypertextualist in my view) has described himself
as only "a faint-hearted originalist." Antonin Scalia, "Originalism: The
University of Cincinnati
57 (1989): 849, 864 (1989). I happen to identify myself as a textualist
while also harboring a healthy skepticism of originalism (and of Scalia's
particular brand of either approach). See Bryan H. Wildenthal, "The Right
of Confrontation, Justice Scalia, and the Power and Limits of Textualism,"
Washington and Lee Law Review 48 (1991): 1323, 1380-92 (1991). But
Scalia and I are probably both atypical as textualists (in different ways,
and I more so than he), in that most textualists regard evidence of
original understanding (and perhaps also intent) as the strongest
available guide to the meaning of text.
. For just three notable recent examples, in the area
of state autonomy and sovereign immunity, see Seminole Tribe v. Florida,
517 U.S. 44 (1996), Printz v. United States, 521 U.S. 898 (1997), and
Alden v. Maine, 119 S. Ct. 2240 (1999).
. 83 U.S. (16 Wall.) 36 (1873).
. See William Winslow Crosskey, Politics and the
Constitution in the History of the United States (3 vols., Chicago:
University of Chicago Press, 1953, 1980), 2: 1128-30 (1953); John Hart
Ely, Democracy and Distrust: A Theory of Judicial Review
(Cambridge, Mass.: Harvard University Press, 1980), 196-97 n.59; Robert C.
Palmer, "The Parameters of Constitutional Reconstruction:
Slaughter-House, Cruikshank, and the Fourteenth Amendment,
University of Illinois Law Review 1984 (1984): 739; Kevin Christopher
Newsom, "Setting Incorporationism Straight: A Reinterpretation of the
Slaughter-House Cases," Yale Law Journal 109 (2000): 643;
Wildenthal, "Lost Compromise," supra note ; see also 1 Laurence
H. Tribe, American Constitutional Law_, 3d ed. (Mineola, NY:
Foundation Press, 2000--), 1: sec. 7-3, at 1307.
. There are a few too many sentences like the following
(p. 186): "By giving prominence to a series of questions about how
institutional legitimacy is achieved and sustained, won and lost, I make a
case for the central relevance of the sociology of knowledge (the
production and mobilization of various knowledge claims) in the
theorization of social structure and institutional Court legitimation."
Fortunately, Brandwein conveys the thought far more effectively (and with
comparatively Hemingway-esque prose) a few pages later (p. 189): "Whenever
institutional actors (like judges) act, and whenever they build
justifications for their actions, they invoke knowledge systems.... This
chapter builds a theoretical link between social structure and the
production of knowledge. I make a case for bringing sociological attention
to the processes by which institutional actors come to know what they
know. Under what conditions and circumstances do they come to know it?"
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Library of Congress
Call Number: KF4541 .B688 1999
* Constitutional history--United States
* Slavery--United States--History
* Election law--United States--History
* Civil rights--United States--History
Citation: Bryan H. Wildenthal . "Review of Pamela Brandwein,
Reconstructing Reconstruction: The Supreme Court and the Production of
Historical Truth," H-Law, H-Net Reviews, September, 2000. URL:
“Brandwein does a good job of showing…how the ideas of majorities in
passing legislation can be subordinated by the Supreme Court in favor of
the ideas of political minorities…The book…breaks new ground and opens the
way for future scholarship.”
Robert W. Langren, review
of Reconstructing Reconstruction: The Supreme Court and the Production
of Historical Truth, by Pamela Branwein, The American Political
Science Review, 94 (September 2000): 716-717.