Reconstruction, history, law, and what we want it to be

The title of this post from Paul Campos is snarky, but it’s not at all flippant: “Is the 14th amendment unconstitutional? Views differ.”

It seems like a joke, right? I mean, the 14th Amendment is part of the Constitution. It is the Constitution. And as such it has to be “constitutional,” doesn’t it?

But Campos — an actual law professor who studies and teaches this stuff for a living — uses the tools of his trade to unpack the “meta-interpretive arguments” that explain why it might be possible to conceive of parts of the Constitution being unconstitutional. Helpfully, he then brings this back down to earth in a way that clarifies things for us laypeople and cuts to the core of what’s really going on in such arguments.

I find this helpful and insightful, not just when it comes to the perennially disputed constitutionality of the Reconstruction Amendments, but for a host of other muddily debated questions — including things such as “what is an ‘evangelical’?” or “Was America Founded as a Christian Nation?”

Campos gets into “the legal theoretical distinction between the constituent political power and the constituted power,” which is easier to understand when it’s applied to a specific example:

Here for example is an article from no less an eminent source than the Harvard Law Review, arguing that the 15th amendment, which purportedly took away from states and the federal government the right to deny non-white Americans the vote, may not actually be constitutional, because the right of the white man to control the franchise is at the core of the original Constitution itself, and to deny him that right is to essentially overthrow rather than amend that document, in the same sense that an amendment creating a hereditary aristocracy to rule the nation would be unconstitutional. Structurally similar arguments have been made in exactly the opposite direction, claiming that a constitutional amendment enshrining white supremacy would be unconstitutional, because it would violate the fundamental core principle of the constituent power, which is that all men are created equal, not just white men. (For what should be obvious reasons I’m using the term “men” rather than “people” here intentionally). It’s been argued that a constitutional amendment revoking the free speech clause would be similarly unconstitutional.

That last example is helpful to me. If Mayor Quimby signed a law banning free speech in Springfield, that law would be obviously unconstitutional, because it would violate the free speech clause of the First Amendment. But if we the people got together to add a 28th Amendment to the Constitution revoking the First Amendment, the new amendment would give “constitutional” a new meaning, for better or for worse. (It would be worse.)

I rather like the First Amendment, so I would very much oppose and resist the Quimby Amendment revoking our rights to free speech, religious liberty, freedom of the press, etc. But I wouldn’t advocate for the First Amendment’s reinstatement solely on the terms of constituent power vs. constituted power. I would advocate for it because I want the things the First Amendment secures — because I value them and seek to honor them and to make them real and keep them real. I would not be arguing solely about what is or about what was, but about what ought to be.

And that is basically Campos’s point:

The point is that we can and do have meta-interpretive arguments about what underlying fundamental political principles that make the Constitution fundamental law are. And here it’s critical to distinguish between historical and, narrowly defined, “legal” argument. The answer to the historical question of whether the Constitution is a white supremacist charter, or ultimately rejects white supremacism, is “yes.” That of course can’t be the technical legal answer, because as a functional matter law has to be a lot less complicated than history.

Which brings me to my real point here, which is that arguments about things like birthright citizenship are ultimately really arguments about whether the Constitution should be interpreted as a white supremacist charter, or a rejection of that fundamental interpretive understanding of the meaning of America. And it should be unnecessary to point out that any strictly formal legal answer to that question is necessarily a form of question-begging, since it attempts to enlist norms of formal legal description for normative rather than descriptive ends.

And this is a fancy way of saying that anybody who makes a historical argument for the claim that the 14th amendment doesn’t legalize birthright citizenship is, as a practical political matter, making an argument for white supremacy. Saying “I’m not arguing for white supremacy, I’m arguing for historical truth,” doesn’t get the putatively non-white supremacist legal historian out of this dilemma, because the question of which historical constitutional vision one is advancing, that is, one that is white supremacist or anti-supremacist, is not itself a historical question, but a question of political commitment and its attendant moral consequences.

History is complicated. That includes the slice of history we occupy at any given moment — the present. But, as Campos says, “as a functional matter law has to be a lot less complicated than history.”

The title of John Fea’s book above — “Was America Founded as a Christian Nation?” — is really a shortened version of the question “Was America Founded as a Christian Nation or was America founded on the bedrock principle of religious liberty and the separation of church and state?” And the answer historians and the history itself give to that question is “Yes.” It’s complicated. But as a functional matter, the question of whether America should be “a Christian nation” with a formally established official, privileged sectarian identity has to be a lot less complicated.

And if we want to keep that question uncomplicated, we don’t need to worry about meta-interpretive arguments about constituent and constituted powers. We can keep things uncomplicated by cutting to the core of the argument, which is normative. What do we think it ought to be? What do we want?

That’s really at the core of John Fea’s debunking of the kind of pseudo-history and “Christian America” myth-making promoted by folks like David Barton and Peter Marshall. Historians like Fea provide an important, useful service by correcting — and complicating — the historical record to rebut Barton’s lies and his bad-faith “history.” But the normative question can’t ever be settled by correctly citing and contextualizing Benjamin Franklin’s call for prayer at the Constitutional Convention, or by exploring whether or not George Washington really prayed at Valley Forge.

If I want to refute Bartonism or dominionism or theonomy or Neo-Stuyvesant-ism or any of the other various forms of white Christian nationalism now being promoted I need to start by explaining that I do not want sectarian government. And by explaining why I do not want it. And then by explaining how and why pseudo-historian religious-right activists like David Barton and Doug Wilson and Stephen Wolfe and Sammy Alito do not and should not really want it either.

Legitimate historians responding to bogus mythologizers like Barton and Alito also recognize that while history tends to be more complicated than law, law is part of that history. So they cite “historical” documents like Jefferson’s letter to the Danbury Baptists and Washington’s letter to the Hebrew Congregation in Newport. But they will also cite the law — the Constitution itself — because that legal document is also a historical document. The Establishment clause and the Free Exercise clause (which is not restricted to only Christians) and the Constitution’s ban on religious tests are also part of our history and — like the stark language of the 14th Amendment — they’re really not all that ambiguous or ambivalent.

This is a fancy way of saying that anybody who makes a historical argument for the claim that the Constitution does not enshrine secular government is, as a practical political matter, making an argument for sectarian supremacy. They’re making a normative argument. They’re telling you what they want.

And, more specifically, they’re telling you what they want to do to you.