Constitutional history and constitutional theory: Reflections on Ackerman, reconstruction, and the transformation of the American constitution

Yale Law Journal

Volumn 108, Issue 8, 1999, Pages 2011-2037

  Les Benedict, Michael ^a  

^a NONE

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EID: 0041375802     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797381     Document Type: Article

References (220)

1. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 8-11 (1998).
2. During the Civil War and Reconstruction, a few conservatives argued that what became the 13th and 14th Amendments were illegitimate because they did not merely amend the existing constitutional system but fundamentally altered it, thus going beyond the intentions of the Framers. See DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 160 (1996). The "ratification" in 1992 of the 27th Amendment, originally proposed in 1791, raises the question of whether any ratification meeting the formal requirements of Article Five must be considered legitimate and effectual. The ratification of that Amendment, 200 years after its proposal by Congress, fell far short of the process that Bruce Ackerman persuasively argues underlies Article Five - intensive, reasoned debate by an energized electorate, representing an opinion so deeply and broadly held that it can overcome the obstacles the Framers purposefully put in its way. Although the same may be said of many of the prior 26 Amendments, the 27th is an extreme case. See Stewart Dalzell & Eric J. Beste, Is the Twenty- Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 503 (1994) (referring to "the Amendment's curious history"); Christopher M. Kennedy, Is There a Twenty-Seventh Amendment? The Unconstitutionality of a "New" 203-Year-Old Amendment, 26 J. MARSHALL L. REV. 977, 978-79 (1993); Sanford Levinson, Authorizing Constitutional Text: On the Purported Twenty-Seventh Amendment, 11 CONST. COMMENTARY 101, 102 (1994).
3. During the Civil War and Reconstruction, a few conservatives argued that what became the 13th and 14th Amendments were illegitimate because they did not merely amend the existing constitutional system but fundamentally altered it, thus going beyond the intentions of the Framers. See DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 160 (1996). The "ratification" in 1992 of the 27th Amendment, originally proposed in 1791, raises the question of whether any ratification meeting the formal requirements of Article Five must be considered legitimate and effectual. The ratification of that Amendment, 200 years after its proposal by Congress, fell far short of the process that Bruce Ackerman persuasively argues underlies Article Five - intensive, reasoned debate by an energized electorate, representing an opinion so deeply and broadly held that it can overcome the obstacles the Framers purposefully put in its way. Although the same may be said of many of the prior 26 Amendments, the 27th is an extreme case. See Stewart Dalzell & Eric J. Beste, Is the Twenty-Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 503 (1994) (referring to "the Amendment's curious history"); Christopher M. Kennedy, Is There a Twenty-Seventh Amendment? The Unconstitutionality of a "New" 203-Year-Old Amendment, 26 J. MARSHALL L. REV. 977, 978-79 (1993); Sanford Levinson, Authorizing Constitutional Text: On the Purported Twenty-Seventh Amendment, 11 CONST. COMMENTARY 101, 102 (1994).
4. During the Civil War and Reconstruction, a few conservatives argued that what became the 13th and 14th Amendments were illegitimate because they did not merely amend the existing constitutional system but fundamentally altered it, thus going beyond the intentions of the Framers. See DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 160 (1996). The "ratification" in 1992 of the 27th Amendment, originally proposed in 1791, raises the question of whether any ratification meeting the formal requirements of Article Five must be considered legitimate and effectual. The ratification of that Amendment, 200 years after its proposal by Congress, fell far short of the process that Bruce Ackerman persuasively argues underlies Article Five - intensive, reasoned debate by an energized electorate, representing an opinion so deeply and broadly held that it can overcome the obstacles the Framers purposefully put in its way. Although the same may be said of many of the prior 26 Amendments, the 27th is an extreme case. See Stewart Dalzell & Eric J. Beste, Is the Twenty- Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 503 (1994) (referring to "the Amendment's curious history"); Christopher M. Kennedy, Is There a Twenty-Seventh Amendment? The Unconstitutionality of a "New" 203-Year-Old Amendment, 26 J. MARSHALL L. REV. 977, 978-79 (1993); Sanford Levinson, Authorizing Constitutional Text: On the Purported Twenty-Seventh Amendment, 11 CONST. COMMENTARY 101, 102 (1994).
5. During the Civil War and Reconstruction, a few conservatives argued that what became the 13th and 14th Amendments were illegitimate because they did not merely amend the existing constitutional system but fundamentally altered it, thus going beyond the intentions of the Framers. See DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 160 (1996). The "ratification" in 1992 of the 27th Amendment, originally proposed in 1791, raises the question of whether any ratification meeting the formal requirements of Article Five must be considered legitimate and effectual. The ratification of that Amendment, 200 years after its proposal by Congress, fell far short of the process that Bruce Ackerman persuasively argues underlies Article Five - intensive, reasoned debate by an energized electorate, representing an opinion so deeply and broadly held that it can overcome the obstacles the Framers purposefully put in its way. Although the same may be said of many of the prior 26 Amendments, the 27th is an extreme case. See Stewart Dalzell & Eric J. Beste, Is the Twenty- Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 503 (1994) (referring to "the Amendment's curious history"); Christopher M. Kennedy, Is There a Twenty-Seventh Amendment? The Unconstitutionality of a "New" 203-Year-Old Amendment, 26 J. MARSHALL L. REV. 977, 978-79 (1993); Sanford Levinson, Authorizing Constitutional Text: On the Purported Twenty-Seventh Amendment, 11 CONST. COMMENTARY 101, 102 (1994).
6. The term probably dates to the publication of HOWARD LEE MCBAIN, THE LIVING CONSTITUTION: A CONSIDERATION OF THE REALITIES AND LEGENDS OF OUR FUNDAMENTAL LAW (1927). Of course, the idea of a "living Constitution" can be understood narrowly to mean only that established principles are applied to new situations. This is a view with which Chief Justice Rehnquist said, "scarcely anyone would disagree." William Rehnquist, The Notion of a Living Constitution, 54 TAX L. REV. 693, 694 (1976). It has come to mean, however, that the principles themselves change over time.
7. Compare United States v. Darby Lumber Co., 312 U.S. 100 (1941) (holding that the federal government may regulate wages and hours of employees who produce goods intended for interstate commerce, irrespective of the 10th Amendment), Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (holding that the 10th Amendment does not limit federal taxation power), NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (holding that the federal government may regulate labor relations in any industry directly or indirectly affecting interstate commerce), and West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (holding that minimum-wage legislation does not deprive employers and employees of freedom of contract in violation of the Due Process Clause of the 14th Amendment), with Carter v. Carter Coal Co., 298 U.S. 238 (1936) (holding that the federal government may not regulate wages and hours in employments that only indirectly affect interstate commerce), United States v. Butler, 297 U.S. 1 (1936) (holding that the federal government may not levy taxes to enact programs in areas reserved to the states by the 10th Amendment), Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (holding that the federal government may not enact safety and health regulations for businesses that only indirectly affect interstate commerce), Adkins v. Children's Hosp., 261 U.S. 525 (1923) (holding that minimum-wage legislation deprives employers and employess of freedom of contract in violation of the due process clause of the 5th and 14th Amendments), Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (holding that the federal government may not levy taxes to enforce programs in areas reserved to the state jurisdiction by the 10th Amendment), and Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding that the federal government may not bar goods from entry into interstate commerce to enforce programs in areas reserved to state jurisdiction by the 10th Amendment).
8. See, e.g., Darby, 312 U.S. at 100; West Coast Hotel, 300 U.S. at 379.
9. See, e.g., Darby, 312 U.S. at 100; West Coast Hotel, 300 U.S. at 379.
10. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963). This myth was reflected in the iconic status accorded the dissents that Oliver Wendell Holmes penned in the Lochner era - especially, his famous admonition in Lochner itself that "[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). Justices O'Connor, Kennedy, and Souter modified the Court's traditional account in Planned Parenthood v. Casey, 505 U.S. 833, 861-2 (1992) (plurality opinion), indicating that the Lochner line of cases had been premised upon "fundamentally false factual assumptions" about the free market's ability to secure human welfare. The Supreme Court placed its solemn imprimatur on the myth of a return to a correct, nationalistic understanding of federalism in Darby, 312 U.S. at 115, which cited the "now classic dissent of Mr. Justice Holmes" in Hammer v. Dagenhart, 247 U.S. 251, 277 (1918). It is a sign of the deep conflict between liberal and conservative constitutionalism on the Court that, while Justice Souter repeated the traditional account in his dissenting opinion in U.S. v. Lopez, 514 U.S. 549, 604-07 (1995) (Souter, J., dissenting), Justice Thomas directly challenged it in a concurring opinion, insisting that, "[i]f anything, the 'wrong turn' was the Court's dramatic departure in the 1930's from a century and a half of precedent." Id. at 599 (Thomas. J., concurring).
11. 347 U.S. 483 (1954).
12. Id. at 492.
13. Id.
14. Robert J. Harris, The Constitution, Education, and Segregation, 29 TEMP. L.Q. 409, 431 (1956).
15. 163 U.S. 537 (1896).
16. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
17. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
18. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
19. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
20. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
21. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
22. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
23. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74-84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
24. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
25. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
26. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
27. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
28. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
29. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958); Eugene Cook & William I. Potter, The School Segregation Cases: Opposing the Opinion of the Supreme Court, 42 A.B.A. J. 313, 313 (1956); Harris, supra note 10, at 432; H. Gifford Irion, The Constitutional Clock: A Horological Inquiry, 46 GEO. L.J. 443, 451 (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 22 (1959). In 1971, Judge J. Skelly Wright complained that "the Warren years were marked by . . . an increasingly dissatisfied and prolific group of legal scholars." J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 770 (1971). Nearly 25 years later, a commentator still wrote of "the seemingly endless articulation of dissatisfaction with the opinion of the Court" in the school segregation cases. Norman C. Amaker, The Haunting Presence of the Opinion in Brown v. Board of Education, 20 S. ILL. U. L.J. 3, 3 (1995). For examples of such commentary, see ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 74- 84 (1990); J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 28-39 (1979); Paul F. Campos, Forty Years in the Desert, 20 S. ILL. U. L.J. 109 (1995); Edward J. Erler, Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education, 8 HARV. J.L. & PUB. POL'Y 399 (1985); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 636-37 (1993); Earl M. Maltz, A Dissenting Opinion to Brown, 20 S. ILL. U. L.J. 93 (1995); and Michael J. Perry, Brown, Bolling and Originalism: Why Ackerman and Posner (Among Others) Are Wrong, 20 S. ILL. U. L.J. 53 (1995).
30. ALPHEUS THOMAS MASON, THE SUPREME COURT FROM TAFT TO WARREN 207 (rev. ed. 1968).
31. ARTHUR SELWYN MILLER, Notes on the Concept of the "Living" Constitution, in SOCIAL CHANGE AND FUNDAMENTAL LAW: AMERICA'S EVOLVING CONSTITUTION 343, 357 (1979).
32. For example, see the empathetic (not sympathetic) account of Plessy v. Ferguson in CHARLES A. LOFGREN, THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION (1987). For similarly empathetic discussions of Lochner-en laissez-faire constitutionalism, see HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER-ERA POLICE POWER JURISPRUDENCE (1993); DAVID GOLD, THE SHAPING OF NINETEENTH-CENTURY LAW: JOHN APPLETON AND RESPONSIBLE INDIVIDUALISM (1990); and Michael Les Benedict, Laissez faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-faire Constitutionalism, 3 L. & HIST. REV. 293 (1985).
33. For example, see the empathetic (not sympathetic) account of Plessy v. Ferguson in CHARLES A. LOFGREN, THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION (1987). For similarly empathetic discussions of Lochner-en laissez-faire constitutionalism, see HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER-ERA POLICE POWER JURISPRUDENCE (1993); DAVID GOLD, THE SHAPING OF NINETEENTH-CENTURY LAW: JOHN APPLETON AND RESPONSIBLE INDIVIDUALISM (1990); and Michael Les Benedict, Laissez faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-faire Constitutionalism, 3 L. & HIST. REV. 293 (1985).
34. For example, see the empathetic (not sympathetic) account of Plessy v. Ferguson in CHARLES A. LOFGREN, THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION (1987). For similarly empathetic discussions of Lochner-en laissez-faire constitutionalism, see HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER-ERA POLICE POWER JURISPRUDENCE (1993); DAVID GOLD, THE SHAPING OF NINETEENTH-CENTURY LAW: JOHN APPLETON AND RESPONSIBLE INDIVIDUALISM (1990); and Michael Les Benedict, Laissez faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-faire Constitutionalism, 3 L. & HIST. REV. 293 (1985).
35. For example, see the empathetic (not sympathetic) account of Plessy v. Ferguson in CHARLES A. LOFGREN, THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION (1987). For similarly empathetic discussions of Lochner-en laissez-faire constitutionalism, see HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER-ERA POLICE POWER JURISPRUDENCE (1993); DAVID GOLD, THE SHAPING OF NINETEENTH-CENTURY LAW: JOHN APPLETON AND RESPONSIBLE INDIVIDUALISM (1990); and Michael Les Benedict, Laissez faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-faire Constitutionalism, 3 L. & HIST. REV. 293 (1985).
36. Stephen M. Griffin, Constitutional Theory Transformed, 108 YALE L.J. 2115 (1999).
37. Cf. STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS (1996) (connecting constitutional interpretation with political institutions).
38. Id. at 76.
39. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9- 31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
40. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9-31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
41. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9- 31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
42. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9- 31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
43. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9- 31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
44. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9- 31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
45. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9- 31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
46. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9- 31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
47. See, e.g., GILLMAN, supra note 15, at 10 (arguing that Lochner-era constitutional law was a longstanding, principled effort to distinguish valid economic legislation from invalid "class" legislation); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9- 31 (1992) (describing the structure of "classical" legal thought in the late 19th century); Benedict, supra note 15 (arguing that laissez-faire constitutionalism reflects a traditional American concern with avoiding class legislation); Alan Jones, Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration, 53 J. AM. HIST. 751, 752 (1967) (arguing that Cooley's ideas reflect the survival of the Jeffersonian conception of equal rights in a new economic environment); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975) (showing that Justice Field attempted to separate public and private sectors of life into fixed, inviolable spheres, based on Jacksonian and antislavery precepts); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337 (1997) (tracing the ancient lineage of the concept underlying substantive due process of law); Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 LAW & HIST. REV. 215 (1995) (describing classical legal thought in the late 19th century, as reflected in the career of a leading law writer); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition 70 N.C. L. REV. 1 (1991) (arguing that the Lochner-era marked a transition from an era of treating law as the embodiment of fixed natural law and common-law concepts to one of treating constitutional law as the outcome of pragmatic interest-balancing); Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 YALE L.J. 286 (1962) (arguing that laissez-faire constitutionalism reflected the reality that the state's ability to deal with social problems was severely limited in the 19th century).
48. 505 U.S. 833 (1992).
49. See 2 ACKERMAN, supra note 1, at 400-01.
50. 2 id. at 389-400. For a similar conclusion, see Rogers M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039 (1999). New Deal constitutionalism is being challenged vigorously by "takings" doctrines that echo the due-process-of-law doctrines central to laissez-faire constitutionalism and by doctrines of "federalism" that echo pre-New Deal dual federalism. For the former, see Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that a requirement that a business turn over land for use as a bicycle path in return for a redevelopment permit constitutes a "taking" in violation of the Fifth Amendment as applied through the Fourteenth Amendment, and RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). There remain echoes of dual federalism. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting) (arguing that the 10th Amendment reserves to the people of each state the power to set term limits for representatives to the United States Congress); New York v. United States, 505 U.S. 144 (1992) (holding that federal government cannot compel states to "take title" to radioactive waste); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 557 (1985) (Powell, J., dissenting) (arguing that the federal government cannot regulate state and local employees carrying out traditional state and local functions).
51. 2 id. at 389-400. For a similar conclusion, see Rogers M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039 (1999). New Deal constitutionalism is being challenged vigorously by "takings" doctrines that echo the due-process-of-law doctrines central to laissez-faire constitutionalism and by doctrines of "federalism" that echo pre-New Deal dual federalism. For the former, see Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that a requirement that a business turn over land for use as a bicycle path in return for a redevelopment permit constitutes a "taking" in violation of the Fifth Amendment as applied through the Fourteenth Amendment, and RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). There remain echoes of dual federalism. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting) (arguing that the 10th Amendment reserves to the people of each state the power to set term limits for representatives to the United States Congress); New York v. United States, 505 U.S. 144 (1992) (holding that federal government cannot compel states to "take title" to radioactive waste); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 557 (1985) (Powell, J., dissenting) (arguing that the federal government cannot regulate state and local employees carrying out traditional state and local functions).
52. 2 id. at 389-400. For a similar conclusion, see Rogers M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039 (1999). New Deal constitutionalism is being challenged vigorously by "takings" doctrines that echo the due-process-of-law doctrines central to laissez-faire constitutionalism and by doctrines of "federalism" that echo pre-New Deal dual federalism. For the former, see Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that a requirement that a business turn over land for use as a bicycle path in return for a redevelopment permit constitutes a "taking" in violation of the Fifth Amendment as applied through the Fourteenth Amendment, and RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). There remain echoes of dual federalism. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting)
53. 2 id. at 389-400. For a similar conclusion, see Rogers M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039 (1999). New Deal constitutionalism is being challenged vigorously by "takings" doctrines that echo the due-process-of-law doctrines central to laissez-faire constitutionalism and by doctrines of "federalism" that echo pre-New Deal dual federalism. For the former, see Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that a requirement that a business turn over land for use as a bicycle path in return for a redevelopment permit constitutes a "taking" in violation of the Fifth Amendment as applied through the Fourteenth Amendment, and RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). There remain echoes of dual federalism. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting) (arguing that the 10th Amendment reserves to the people of each state the power to set term limits for representatives to the United States Congress); New York v. United States, 505 U.S. 144 (1992) (holding that federal government cannot compel states to "take title" to radioactive waste); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 557 (1985) (Powell, J., dissenting) (arguing that the federal government cannot regulate state and local employees carrying out traditional state and local functions).
54. 2 id. at 389-400. For a similar conclusion, see Rogers M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039 (1999). New Deal constitutionalism is being challenged vigorously by "takings" doctrines that echo the due-process-of-law doctrines central to laissez-faire constitutionalism and by doctrines of "federalism" that echo pre-New Deal dual federalism. For the former, see Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that a requirement that a business turn over land for use as a bicycle path in return for a redevelopment permit constitutes a "taking" in violation of the Fifth Amendment as applied through the Fourteenth Amendment, and RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). There remain echoes of dual federalism. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting) (arguing that the 10th Amendment reserves to the people of each state the power to set term limits for representatives to the United States Congress); New York v. United States, 505 U.S. 144 (1992) (holding that federal government cannot compel states to "take title" to radioactive waste); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 557 (1985) (Powell, J., dissenting) (arguing that the federal government cannot regulate state and local employees carrying out traditional state and local functions).
55. 2 id. at 389-400. For a similar conclusion, see Rogers M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039 (1999). New Deal constitutionalism is being challenged vigorously by "takings" doctrines that echo the due-process-of-law doctrines central to laissez-faire constitutionalism and by doctrines of "federalism" that echo pre-New Deal dual federalism. For the former, see Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that a requirement that a business turn over land for use as a bicycle path in return for a redevelopment permit constitutes a "taking" in violation of the Fifth Amendment as applied through the Fourteenth Amendment, and RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). There remain echoes of dual federalism. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting) (arguing that the 10th Amendment reserves to the people of each state the power to set term limits for representatives to the United States Congress); New York v. United States, 505 U.S. 144 (1992) (holding that federal government cannot compel states to "take title" to radioactive waste); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 557 (1985) (Powell, J., dissenting) (arguing that the federal government cannot regulate state and local employees carrying out traditional state and local functions).
56. 2 id. at 389-400. For a similar conclusion, see Rogers M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039 (1999). New Deal constitutionalism is being challenged vigorously by "takings" doctrines that echo the due-process-of-law doctrines central to laissez-faire constitutionalism and by doctrines of "federalism" that echo pre-New Deal dual federalism. For the former, see Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that a requirement that a business turn over land for use as a bicycle path in return for a redevelopment permit constitutes a "taking" in violation of the Fifth Amendment as applied through the Fourteenth Amendment, and RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). There remain echoes of dual federalism. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting) (arguing that the 10th Amendment reserves to the people of each state the power to set term limits for representatives to the United States Congress); New York v. United States, 505 U.S. 144 (1992) (holding that federal government cannot compel states to "take title" to radioactive waste); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 557 (1985) (Powell, J., dissenting) (arguing that the federal government cannot regulate state and local employees carrying out traditional state and local functions).
57. William G. Beasly & E.G. Pulleyblank, Introduction to HISTORIANS OF CHINA AND JAPAN 7 (William G. Beasly & E.G. Pulleyblank eds., 1961). The notion persists. See, e.g., RICHARD E. NEUSTADT & ERNEST R. MAY, THINKING IN TIME: THE USES OF HISTORY FOR DECISION-MAKERS at xi-xxii (1986) (showing how policymakers can benefit from historical knowledge).
58. William G. Beasly & E.G. Pulleyblank, Introduction to HISTORIANS OF CHINA AND JAPAN 7 (William G. Beasly & E.G. Pulleyblank eds., 1961). The notion persists. See, e.g., RICHARD E. NEUSTADT & ERNEST R. MAY, THINKING IN TIME: THE USES OF HISTORY FOR DECISION-MAKERS at xi-xxii (1986) (showing how policymakers can benefit from historical knowledge).
59. PLUTARCH, LIVES OF THE NOBLE GREEKS 204 (Edmund Fuller ed., 1959).
60. BARTLETT'S FAMILIAR QUOTATIONS 100 (16th ed. 1992) (attributing the aphorism to Dionysius of Halicarnassus, c. 54-7 B.C.).
61. John Emerich Edward Dalberg-Acton (Lord Acton), The Study of History, in 2 SELECTED WRITINGS OF LORD ACTON: ESSAYS IN THE STUDY AND WRITING OF HISTORY 504, 551 (J. Rufus Fears ed., 1985).
62. HENRY STEELE COMMAGER, THE NATURE AND STUDY OF HISTORY 66 (1985).
63. Id.
64. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
65. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
66. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
67. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
68. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
69. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
70. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
71. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
72. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
73. See, e.g., JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION, 1866-1876 (1902); WILLIAM ARCHIBALD DUNNING, The Constitution of the United States in Reconstruction, in ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION, AND RELATED TOPICS 63 (1898). Later, "revisionist" historians, like Howard K. Beale, concluded that economic issues lay under the Reconstruction struggle, dismissing the constitutional rhetoric of the time as mere "claptrap." See, e.g., HOWARD K. BEALE, THE CRITICAL YEAR: A STUDY OF ANDREW JOHNSON AND RECONSTRUCTION 8-9 (1930). But the "neo-revisionists of the 1960s and 1970s once again stressed constitutional issues. See, e.g., HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS: POLITICS AND CONSTITUTIONALISM IN THE CIVIL WAR ERA (1978); HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND PRACTICE DURING THE CIVIL WAR (1969); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863-1869 (1974) [hereinafter BENEDICT, COMPROMISE]; MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973); HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1973); ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960); JAMES E. SEFTON, ANDREW JOHNSON AND THE USES OF CONSTITUTIONAL POWER (1980).
74. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
75. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
76. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
77. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
78. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
79. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
80. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
81. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
82. Classic examples are Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949); and Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). Remaining influential today are RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); CHARLES FAIRMAN, 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88: PART ONE (1971); EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863 (1986).
83. Brown v. Board of Educ., 347 U.S. 483, 489 (1954).
84. John Phillip Reid, Law and History, 21 LOY. L.A. L. REV. 193, 196 (1993).
85. See MALTZ, supra note 30, at xi.
86. See id.
87. See id.
88. See id.
89. See id. at 104-05.
90. See id. passim.
91. Id. at xii.
92. FAIRMAN, supra note 30, at 1134-35.
93. See Michael Les Benedict, Review: Fairman, History of the Supreme Court of the United States: Volume VI, Reconstruction and Reunion, 1864-88: Part One, 39 U. CHI. L. REV. 862, 866 (1972) (book review).
94. See RAOUL BERGER, THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 128-42 (1989); BERGER, supra note 30, at 145, 219; FAIRMAN, supra note 30, at 1275, 1287-89, 1291-95; Fairman, supra note 30, at 30-37, 54, 55-58.
95. See RAOUL BERGER, THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 128-42 (1989); BERGER, supra note 30, at 145, 219; FAIRMAN, supra note 30, at 1275, 1287-89, 1291-95; Fairman, supra note 30, at 30-37, 54, 55-58.
96. See RAOUL BERGER, THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 128-42 (1989); BERGER, supra note 30, at 145, 219; FAIRMAN, supra note 30, at 1275, 1287-89, 1291-95; Fairman, supra note 30, at 30-37, 54, 55-58.
97. See RAOUL BERGER, THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 128-42 (1989); BERGER, supra note 30, at 145, 219; FAIRMAN, supra note 30, at 1275, 1287-89, 1291-95; Fairman, supra note 30, at 30-37, 54, 55-58.
98. FAIRMAN, supra note 30, at 1289.
99. CURTIS, supra note 30, at 16.
100. Id. at 220.
101. See 2 ACKERMAN, supra note 1, at 193-98.
102. The Suffrage Amendment, CHI. TRIB., Mar. 2, 1869, at 2; see also BENEDICT, COMPROMISE, supra note 29, at 210-43 (detailing the development of congressional Reconstruction legislation and black suffrage).
103. The Suffrage Amendment, CHI. TRIB., Mar. 2, 1869, at 2; see also BENEDICT, COMPROMISE, supra note 29, at 210-43 (detailing the development of congressional Reconstruction legislation and black suffrage).
104. The Suffrage Amendment, supra note 47, at 2.
105. Perhaps most similar in its portrayal of Johnson as a cunning political tactician is HANS L. TREFOUSSE, IMPEACHMENT OF A PRESIDENT: ANDREW JOHNSON, THE BLACKS, AND RECONSTRUCTION (1975).
106. See 2 ACKERMAN, supra note 1, at 198-205.
107. For my book A COMPROMISE OF PRINCIPLE, supra note 29, I researched over 155 collections of correspondence at over 25 repositories. A list may be found in id. at 450-53.
108. 2 ACKERMAN, supra note 1, at 178-83. Ackerman uses the term "higher lawmaking" throughout the book.
109. The estimated median turnout in the Northern and border states was 61.2% in 1866, compared to 56.4%, 57.9%, and 57.3% in the congressional elections of 1862, 1870, and 1874. The figures are based upon election and census data obtainable from the Inter-University Consortium for Political and Social Research, Ann Arbor, Michigan. See Walter Dean Burnham et al., State-level Congressional, Gubernatorial and Senatorial Election Data for the United States, 1824-1972, available in http://www.icpsr.umich.edu/cgi; Walter Dean Burnham et al., State- level Presidential Election Data for the United States, 1824-1972, available in http://www.icpsr.umich.edu/cgi. Walter Dean Burnham found the 1866 turnout in Ohio the highest in the state's history. See Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: An Outsider Looks at Bruce Ackerman's We The People, 108 YALE L.J. 2248 (1999).
110. The estimated median turnout in the Northern and border states was 61.2% in 1866, compared to 56.4%, 57.9%, and 57.3% in the congressional elections of 1862, 1870, and 1874. The figures are based upon election and census data obtainable from the Inter-University Consortium for Political and Social Research, Ann Arbor, Michigan. See Walter Dean Burnham et al., State-level Congressional, Gubernatorial and Senatorial Election Data for the United States, 1824-1972, available in http://www.icpsr.umich.edu/cgi; Walter Dean Burnham et al., State-level Presidential Election Data for the United States, 1824-1972, available in http://www.icpsr.umich.edu/cgi. Walter Dean Burnham found the 1866 turnout in Ohio the highest in the state's history. See Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: An Outsider Looks at Bruce Ackerman's We The People, 108 YALE L.J. 2248 (1999).
111. The estimated median turnout in the Northern and border states was 61.2% in 1866, compared to 56.4%, 57.9%, and 57.3% in the congressional elections of 1862, 1870, and 1874. The figures are based upon election and census data obtainable from the Inter-University Consortium for Political and Social Research, Ann Arbor, Michigan. See Walter Dean Burnham et al., State-level Congressional, Gubernatorial and Senatorial Election Data for the United States, 1824-1972, available in http://www.icpsr.umich.edu/cgi; Walter Dean Burnham et al., State- level Presidential Election Data for the United States, 1824-1972, available in http://www.icpsr.umich.edu/cgi. Walter Dean Burnham found the 1866 turnout in Ohio the highest in the state's history. See Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: An Outsider Looks at Bruce Ackerman's We The People, 108 YALE L.J. 2248 (1999).
112. Letter from Stephen A. Hurlbut to Thaddeus Stevens (Dec. 25, 1865), in 2 SELECTED PAPERS OF THADDEUS STEVENS 58 (Beverly Wilson Palmer ed., 1998).
113. See 2 ACKERMAN, supra note 1, at 178-83.
114. 2 GEORGE S. BOUTWELL, REMINISCENCES OF SIXTY YEARS IN PUBLIC AFFAIRS 42 (1902).
115. NELSON, supra note 30, at 7. In what is recognized as the standard study of Reconstruction, Eric Foner agrees: "Republicans rejected calls to define these [specific provisions of the Amendment] with precision." ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 257 (1988).
116. NELSON, supra note 30, at 7. In what is recognized as the standard study of Reconstruction, Eric Foner agrees: "Republicans rejected calls to define these [specific provisions of the Amendment] with precision." ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 257 (1988).
117. NELSON, supra note 30, at 8.
118. See 2 ACKERMAN, supra note 1, at 3, 207.
119. U.S. CONST. art. IV, § 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government.").
120. Richard H. Dana, Jr., Speech at the Meeting in Faneuil, Boston (June 23, 1865), in N.Y. TIMES, June 24, 1865, at 8, reprinted in RICHARD HENRY DANA, JR., SPEECHES IN STIRRING TIMES AND LETTERS TO A SON 243-59, 246 (Richard Dana III ed., 1910).
121. Richard H. Dana, Jr., Speech at the Meeting in Faneuil, Boston (June 23, 1865), in N.Y. TIMES, June 24, 1865, at 8, reprinted in RICHARD HENRY DANA, JR., SPEECHES IN STIRRING TIMES AND LETTERS TO A SON 243-59, 246 (Richard Dana III ed., 1910).
122. 2 ACKERMAN, supra note 1, at 115.
123. See Michael Les Benedict, Preserving the Constitution: The Conservative Basis of Radical Reconstruction, 61 J. AM. HIST. 65, 72-76 (1974).
124. 2 ACKERMAN, supra note 1, at 116.
125. See BENEDICT, COMPROMISE, supra note 29, at 125-26; Benedict, supra note 63, at 72 .
126. See BENEDICT, COMPROMISE, supra note 29, at 125-26; Benedict, supra note 63, at 72 .
127. Id. at 446 n.46
128. (citing Laurence H. Tribe, Taking Text and Structure Seriously, 108 HARV. L. REV. 1221, 1294 (1995)). This suggests that he is arguing with the jurisprudential concept rather than the historical fact that it was widely accepted.
129. See Benedict, supra note 63, at 73-74.
130. 2 ACKERMAN, supra note 1, at 198.
131. 2 id. at 13.
132. Ackerman stresses the importance of the "unconventionality" of the higher lawmaking process in the introductory discussion of his revised understanding of constitutional change, 2 id. at 10-15, and refers to "unconventional" processes regularly in his narrative and argument.
133. See 2 id. at 207, 385, 393.
134. 2 id. at 198.
135. See id.. at 198-205, 209.
136. See, e.g., BENEDICT, COMPROMISE, supra note 29; JOHN H. COX & LAWANDA COX, POLITICS, PRINCIPLE, AND PREJUDICE, 1865-1866: DILEMMA OF RECONSTRUCTION AMERICA 206 (1963); MCKITRICK, supra note 29.
137. See, e.g., BENEDICT, COMPROMISE, supra note 29; JOHN H. COX & LAWANDA COX, POLITICS, PRINCIPLE, AND PREJUDICE, 1865-1866: DILEMMA OF RECONSTRUCTION AMERICA 206 (1963); MCKITRICK, supra note 29.
138. See, e.g., BENEDICT, COMPROMISE, supra note 29; JOHN H. COX & LAWANDA COX, POLITICS, PRINCIPLE, AND PREJUDICE, 1865-1866: DILEMMA OF RECONSTRUCTION AMERICA 206 (1963); MCKITRICK, supra note 29.
139. See HYMAN, supra note 29, at 435-45, 543-53; Benedict, supra note 63, at 76; PHILLIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND EQUALITY IN THE CIVIL WAR ERA 47-54 (1975). Prior to these publications, William R. Brock and Eric McKitrick had alluded briefly to the constitutional conservatism of the Republican program. See WILLIAM R. BROCK, AN AMERICAN CRISIS: CONGRESS AND RECONSTRUCTION, 1865-1867, at 271-73 (1963); MCKITRICK, supra note 29, at 117-19. Alfred H. Kelly first posited the argument in a comment on an early Hyman paper that stressed the radicalism of Republican constitutionalism. Alfred H. Kelly, Comment on Harold M. Hyman's Paper, in NEW FRONTIERS OF THE AMERICAN RECONSTRUCTION 40 (Harold M. Hyman ed., 1966).
140. See HYMAN, supra note 29, at 435-45, 543-53; Benedict, supra note 63, at 76; PHILLIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND EQUALITY IN THE CIVIL WAR ERA 47-54 (1975). Prior to these publications, William R. Brock and Eric McKitrick had alluded briefly to the constitutional conservatism of the Republican program. See WILLIAM R. BROCK, AN AMERICAN CRISIS: CONGRESS AND RECONSTRUCTION, 1865-1867, at 271-73 (1963); MCKITRICK, supra note 29, at 117-19. Alfred H. Kelly first posited the argument in a comment on an early Hyman paper that stressed the radicalism of Republican constitutionalism. Alfred H. Kelly, Comment on Harold M. Hyman's Paper, in NEW FRONTIERS OF THE AMERICAN RECONSTRUCTION 40 (Harold M. Hyman ed., 1966).
141. See HYMAN, supra note 29, at 435-45, 543-53; Benedict, supra note 63, at 76; PHILLIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND EQUALITY IN THE CIVIL WAR ERA 47-54 (1975). Prior to these publications, William R. Brock and Eric McKitrick had alluded briefly to the constitutional conservatism of the Republican program. See WILLIAM R. BROCK, AN AMERICAN CRISIS: CONGRESS AND RECONSTRUCTION, 1865-1867, at 271-73 (1963); MCKITRICK, supra note 29, at 117-19. Alfred H. Kelly first posited the argument in a comment on an early Hyman paper that stressed the radicalism of Republican constitutionalism. Alfred H. Kelly, Comment on Harold M. Hyman's Paper, in NEW FRONTIERS OF THE AMERICAN RECONSTRUCTION 40 (Harold M. Hyman ed., 1966).
142. See HYMAN, supra note 29, at 435-45, 543-53; Benedict, supra note 63, at 76; PHILLIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND EQUALITY IN THE CIVIL WAR ERA 47-54 (1975). Prior to these publications, William R. Brock and Eric McKitrick had alluded briefly to the constitutional conservatism of the Republican program. See WILLIAM R. BROCK, AN AMERICAN CRISIS: CONGRESS AND RECONSTRUCTION, 1865-1867, at 271-73 (1963); MCKITRICK, supra note 29, at 117-19. Alfred H. Kelly first posited the argument in a comment on an early Hyman paper that stressed the radicalism of Republican constitutionalism. Alfred H. Kelly, Comment on Harold M. Hyman's Paper, in NEW FRONTIERS OF THE AMERICAN RECONSTRUCTION 40 (Harold M. Hyman ed., 1966).
143. See HYMAN, supra note 29, at 435-45, 543-53; Benedict, supra note 63, at 76; PHILLIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND EQUALITY IN THE CIVIL WAR ERA 47-54 (1975). Prior to these publications, William R. Brock and Eric McKitrick had alluded briefly to the constitutional conservatism of the Republican program. See WILLIAM R. BROCK, AN AMERICAN CRISIS: CONGRESS AND RECONSTRUCTION, 1865-1867, at 271-73 (1963); MCKITRICK, supra note 29, at 117-19. Alfred H. Kelly first posited the argument in a comment on an early Hyman paper that stressed the radicalism of Republican constitutionalism. Alfred H. Kelly, Comment on Harold M. Hyman's Paper, in NEW FRONTIERS OF THE AMERICAN RECONSTRUCTION 40 (Harold M. Hyman ed., 1966).
144. See HYMAN, supra note 29, at 435-45, 543-53; Benedict, supra note 63, at 76; PHILLIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND EQUALITY IN THE CIVIL WAR ERA 47-54 (1975). Prior to these publications, William R. Brock and Eric McKitrick had alluded briefly to the constitutional conservatism of the Republican program. See WILLIAM R. BROCK, AN AMERICAN CRISIS: CONGRESS AND RECONSTRUCTION, 1865-1867, at 271-73 (1963); MCKITRICK, supra note 29, at 117-19. Alfred H. Kelly first posited the argument in a comment on an early Hyman paper that stressed the radicalism of Republican constitutionalism. Alfred H. Kelly, Comment on Harold M. Hyman's Paper, in NEW FRONTIERS OF THE AMERICAN RECONSTRUCTION 40 (Harold M. Hyman ed., 1966).
145. See supra text accompanying note 58.
146. See MALTZ, supra note 30, at 157.
147. Kaczorowski, supra note 30, at 863; Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 AM. HIST. REV. 45, 47 (1987); see also Kaczorowski, supra note 30, at 863 (arguing that, despite their racism, congressional Republicans believed in national citizenship so strongly that they favored aggressive Reconstruction).
148. Kaczorowski, supra note 30, at 863; Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 AM. HIST. REV. 45, 47 (1987); see also Kaczorowski, supra note 30, at 863 (arguing that, despite their racism, congressional Republicans believed in national citizenship so strongly that they favored aggressive Reconstruction).
149. Kaczorowski, supra note 30, at 863; Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 AM. HIST. REV. 45, 47 (1987); see also Kaczorowski, supra note 30, at 863 (arguing that, despite their racism, congressional Republicans believed in national citizenship so strongly that they favored aggressive Reconstruction).
150. KYVIG, supra note 2, at 154-87.
151. FONER, supra note 57, at 278.
152. Id. at 259.
153. Id. at 258.
154. See generally Benedict, supra note 63, at 65 (arguing that Republicans did not wish expand dramatically the power of the national government).
155. Id. at 76-80.
156. CONG. GLOBE, 39th Cong., 1st Sess. 476 (1866) (internal quotation marks omitted).
157. Fairman, supra note 30, at 96 (quoting Cox, Ohio Exec. Doc., Part I, 282 (1867)). Cox vigorously supported Johnson until he vetoed the Civil Rights bill; he continued to urge reconciliation with Johnson until he rejected the 14th Amendment. See BENEDICT, COMPROMISE, supra note 29, at 114, 158-70.
158. Fairman, supra note 30, at 96 (quoting Cox, Ohio Exec. Doc., Part I, 282 (1867)). Cox vigorously supported Johnson until he vetoed the Civil Rights bill; he continued to urge reconciliation with Johnson until he rejected the 14th Amendment. See BENEDICT, COMPROMISE, supra note 29, at 114, 158-70.
159. William Dennison, Speech at Columbus, Ohio (Aug. 1866), in CLEVELAND HERALD, Aug. 13, 1866, at 2; see Jacob D. Cox, Speech at the Soldiers and Sailors Convention (Sept. 25, 1866), in N.Y. TIMES, Sept. 26, 1866, at 1; Jacob D. Cox, Speech at Columbus (Aug. 21, 1866), in CINCINNATI COMMERCIAL, SPEECHES OF THE CAMPAIGN OF 1866, IN THE STATES OF OHIO, INDIANA AND KENTUCKY 17 (1866); M.F. Force, Speech at Chillicothe (Sept. 22, 1866), in CINCINNATI COMMERCIAL, supra at 34; James A. Garfield, Speech at Warren, Ohio (Sept. 1, 1866), in 1 THE WORKS OF JAMES ABRAM GARFIELD 216, 240-41 (Burke A. Hinsdale ed., 1882); John Sherman, Speech at Mozart Hall (Sept. 28, 1866), in CINCINNATI COMMERCIAL, supra at 39. Republicans worked feverishly to prevent the Southern Loyalists Convention, called to bring attention to ex-Confederate control in the ex-Confederate states, from undermining the conservative theme by endorsing black suffrage and other radical measures. See BENEDICT, COMPROMISE, supra note 29, at 200-02.
160. William Dennison, Speech at Columbus, Ohio (Aug. 1866), in CLEVELAND HERALD, Aug. 13, 1866, at 2; see Jacob D. Cox, Speech at the Soldiers and Sailors Convention (Sept. 25, 1866), in N.Y. TIMES, Sept. 26, 1866, at 1; Jacob D. Cox, Speech at Columbus (Aug. 21, 1866), in CINCINNATI COMMERCIAL, SPEECHES OF THE CAMPAIGN OF 1866, IN THE STATES OF OHIO, INDIANA AND KENTUCKY 17 (1866); M.F. Force, Speech at Chillicothe (Sept. 22, 1866), in CINCINNATI COMMERCIAL, supra at 34; James A. Garfield, Speech at Warren, Ohio (Sept. 1, 1866), in 1 THE WORKS OF JAMES ABRAM GARFIELD 216, 240-41 (Burke A. Hinsdale ed., 1882); John Sherman, Speech at Mozart Hall (Sept. 28, 1866), in CINCINNATI COMMERCIAL, supra at 39. Republicans worked feverishly to prevent the Southern Loyalists Convention, called to bring attention to ex-Confederate control in the ex-Confederate states, from undermining the conservative theme by endorsing black suffrage and other radical measures. See BENEDICT, COMPROMISE, supra note 29, at 200-02.
161. William Dennison, Speech at Columbus, Ohio (Aug. 1866), in CLEVELAND HERALD, Aug. 13, 1866, at 2; see Jacob D. Cox, Speech at the Soldiers and Sailors Convention (Sept. 25, 1866), in N.Y. TIMES, Sept. 26, 1866, at 1; Jacob D. Cox, Speech at Columbus (Aug. 21, 1866), in CINCINNATI COMMERCIAL, SPEECHES OF THE CAMPAIGN OF 1866, IN THE STATES OF OHIO, INDIANA AND KENTUCKY 17 (1866); M.F. Force, Speech at Chillicothe (Sept. 22, 1866), in CINCINNATI COMMERCIAL, supra at 34; James A. Garfield, Speech at Warren, Ohio (Sept. 1, 1866), in 1 THE WORKS OF JAMES ABRAM GARFIELD 216, 240-41 (Burke A. Hinsdale ed., 1882); John Sherman, Speech at Mozart Hall (Sept. 28, 1866), in CINCINNATI COMMERCIAL, supra at 39. Republicans worked feverishly to prevent the Southern Loyalists Convention, called to bring attention to ex-Confederate control in the ex-Confederate states, from undermining the conservative theme by endorsing black suffrage and other radical measures. See BENEDICT, COMPROMISE, supra note 29, at 200-02.
162. William Dennison, Speech at Columbus, Ohio (Aug. 1866), in CLEVELAND HERALD, Aug. 13, 1866, at 2; see Jacob D. Cox, Speech at the Soldiers and Sailors Convention (Sept. 25, 1866), in N.Y. TIMES, Sept. 26, 1866, at 1; Jacob D. Cox, Speech at Columbus (Aug. 21, 1866), in CINCINNATI COMMERCIAL, SPEECHES OF THE CAMPAIGN OF 1866, IN THE STATES OF OHIO, INDIANA AND KENTUCKY 17 (1866); M.F. Force, Speech at Chillicothe (Sept. 22, 1866), in CINCINNATI COMMERCIAL, supra at 34; James A. Garfield, Speech at Warren, Ohio (Sept. 1, 1866), in 1 THE WORKS OF JAMES ABRAM GARFIELD 216, 240-41 (Burke A. Hinsdale ed., 1882); John Sherman, Speech at Mozart Hall (Sept. 28, 1866), in CINCINNATI COMMERCIAL, supra at 39. Republicans worked feverishly to prevent the Southern Loyalists Convention, called to bring attention to ex-Confederate control in the ex-Confederate states, from undermining the conservative theme by endorsing black suffrage and other radical measures. See BENEDICT, COMPROMISE, supra note 29, at 200-02.
163. William Dennison, Speech at Columbus, Ohio (Aug. 1866), in CLEVELAND HERALD, Aug. 13, 1866, at 2; see Jacob D. Cox, Speech at the Soldiers and Sailors Convention (Sept. 25, 1866), in N.Y. TIMES, Sept. 26, 1866, at 1; Jacob D. Cox, Speech at Columbus (Aug. 21, 1866), in CINCINNATI COMMERCIAL, SPEECHES OF THE CAMPAIGN OF 1866, IN THE STATES OF OHIO, INDIANA AND KENTUCKY 17 (1866); M.F. Force, Speech at Chillicothe (Sept. 22, 1866), in CINCINNATI COMMERCIAL, supra at 34; James A. Garfield, Speech at Warren, Ohio (Sept. 1, 1866), in 1 THE WORKS OF JAMES ABRAM GARFIELD 216, 240-41 (Burke A. Hinsdale ed., 1882); John Sherman, Speech at Mozart Hall (Sept. 28, 1866), in CINCINNATI COMMERCIAL, supra at 39. Republicans worked feverishly to prevent the Southern Loyalists Convention, called to bring attention to ex-Confederate control in the ex-Confederate states, from undermining the conservative theme by endorsing black suffrage and other radical measures. See BENEDICT, COMPROMISE, supra note 29, at 200-02.
164. William Dennison, Speech at Columbus, Ohio (Aug. 1866), in CLEVELAND HERALD, Aug. 13, 1866, at 2; see Jacob D. Cox, Speech at the Soldiers and Sailors Convention (Sept. 25, 1866), in N.Y. TIMES, Sept. 26, 1866, at 1; Jacob D. Cox, Speech at Columbus (Aug. 21, 1866), in CINCINNATI COMMERCIAL, SPEECHES OF THE CAMPAIGN OF 1866, IN THE STATES OF OHIO, INDIANA AND KENTUCKY 17 (1866); M.F. Force, Speech at Chillicothe (Sept. 22, 1866), in CINCINNATI COMMERCIAL, supra at 34; James A. Garfield, Speech at Warren, Ohio (Sept. 1, 1866), in 1 THE WORKS OF JAMES ABRAM GARFIELD 216, 240-41 (Burke A. Hinsdale ed., 1882); John Sherman, Speech at Mozart Hall (Sept. 28, 1866), in CINCINNATI COMMERCIAL, supra at 39. Republicans worked feverishly to prevent the Southern Loyalists Convention, called to bring attention to ex-Confederate control in the ex-Confederate states, from undermining the conservative theme by endorsing black suffrage and other radical measures. See BENEDICT, COMPROMISE, supra note 29, at 200-02.
165. William Dennison, Speech at Columbus, Ohio (Aug. 1866), in CLEVELAND HERALD, Aug. 13, 1866, at 2; see Jacob D. Cox, Speech at the Soldiers and Sailors Convention (Sept. 25, 1866), in N.Y. TIMES, Sept. 26, 1866, at 1; Jacob D. Cox, Speech at Columbus (Aug. 21, 1866), in CINCINNATI COMMERCIAL, SPEECHES OF THE CAMPAIGN OF 1866, IN THE STATES OF OHIO, INDIANA AND KENTUCKY 17 (1866); M.F. Force, Speech at Chillicothe (Sept. 22, 1866), in CINCINNATI COMMERCIAL, supra at 34; James A. Garfield, Speech at Warren, Ohio (Sept. 1, 1866), in 1 THE WORKS OF JAMES ABRAM GARFIELD 216, 240-41 (Burke A. Hinsdale ed., 1882); John Sherman, Speech at Mozart Hall (Sept. 28, 1866), in CINCINNATI COMMERCIAL, supra at 39. Republicans worked feverishly to prevent the Southern Loyalists Convention, called to bring attention to ex-Confederate control in the ex-Confederate states, from undermining the conservative theme by endorsing black suffrage and other radical measures. See BENEDICT, COMPROMISE, supra note 29, at 200-02.
166. N.Y. HERALD, Sept. 25, 1866, at 3. For a similar perspective from a congressman who had supported Andrew Johnson's Reconstruction policy, see The Civil Rights Bill in Congress - Note from K.S. Hale, N.Y. TIMES, Oct. 3, 1866, at 4 (conceding the conservatism of the proposed 14th Amendment).
167. N.Y. HERALD, Sept. 25, 1866, at 3. For a similar perspective from a congressman who had supported Andrew Johnson's Reconstruction policy, see The Civil Rights Bill in Congress -Note from K.S. Hale, N.Y. TIMES, Oct. 3, 1866, at 4 (conceding the conservatism of the proposed 14th Amendment).
168. DAILY NATIONAL INTELLIGENCER (Washington), Nov. 10, 1866, at 2.
169. Ackerman's thesis does not require Republicans to share his understanding of the theoretical implications of their actions. It only requires that his account of their actions and the context in which they took place be accurate, and that his interpretation of what they mean for constitutional theory be persuasive. While he points out with regularity and pleasure occasions when the actors' views coincide with his, he never argues that Republicans or their opponents consciously acted on the theory of constitutional change he delineates. I am less certain if the same is true of his discussion of the Founding, because Ackerman implies that the Framers did not intend Article V to be the exclusive mode of altering the Constitution. See 2 ACKERMAN, supra note 1, at 15, 72-75.
170. See GLENN BURGESS, THE POLITICS OF THE ANCIENT CONSTITUTION: AN INTRODUCTION TO ENGLISH POLITICAL THOUGHT, 1603-1642, at 3, 230-31 (1993); J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN THE SEVENTEENTH CENTURY 30-69, 255-305 (2d ed. 1987).
171. See GLENN BURGESS, THE POLITICS OF THE ANCIENT CONSTITUTION: AN INTRODUCTION TO ENGLISH POLITICAL THOUGHT, 1603-1642, at 3, 230-31 (1993); J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN THE SEVENTEENTH CENTURY 30-69, 255-305 (2d ed. 1987).
172. MICHAEL LANDON, THE TRIUMPH OF THE LAWYERS: THEIR ROLE IN ENGLISH POLITICS, 1678-1689, at 242-43 (1970); see also POCOCK, supra note 91, at 229-40 (arguing that the Glorious Revolution was sustained by appeals to a largely mythical past).
173. MICHAEL LANDON, THE TRIUMPH OF THE LAWYERS: THEIR ROLE IN ENGLISH POLITICS, 1678-1689, at 242-43 (1970); see also POCOCK, supra note 91, at 229-40 (arguing that the Glorious Revolution was sustained by appeals to a largely mythical past).
174. Joseph Hawley, To the Inhabitants of Virginia (Apr. 13, 1775), in 2 AMERICAN ARCHIVES: FOURTH SERIES (1839).
175. JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 19 (abr. ed. 1995).
176. Stephen A. Conrad, The Constitutionalism of "the Common-Law Mind," 13 L. & SOC. INQUIRY 619, 623 (1988). That Americans understood themselves to be preserving traditional liberty from tyrannical innovation emerges clearly from the classic work of BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (enl. ed. 1992).
177. Stephen A. Conrad, The Constitutionalism of "the Common-Law Mind," 13 L. & SOC. INQUIRY 619, 623 (1988). That Americans understood themselves to be preserving traditional liberty from tyrannical innovation emerges clearly from the classic work of BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (enl. ed. 1992).
178. GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 562 (1969).
179. See LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY 17, 92-125 (1978). Joyce Appleby has challenged Banning's conclusion
180. See LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY 17, 92-125 (1978). Joyce Appleby has challenged Banning's conclusion that Jeffersonian Republicans articulated traditional republican ideology, insisting that their ideas embodied what became known as liberalism. See JOYCE APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790s, 18-23 (1984); see also Cathy Matson & Peter Onuf, Toward a Republican Empire: Interest and Ideology in Revolutionary America, 37 AM. Q. 496 (1985) (arguing that the American revolutionary generation reconciled republican ideology with individualistic entrepreneurial activity). Banning responded effectively in a colloquy with Appleby. See Lance Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic, 43 WM. & MARY Q. 3 (1986). But see Joyce Appleby, Republicanism in Old and New Contexts, 43 WM. & MARY Q. 20 (1986). Rowland Berthoff concluded that Americans continued to utilize traditional republican rhetoric well into the 19th century, despite acting on the principles of liberalism. See Rowland Berthoff, Independence, Virtue, and Interest: From Republican Citizen to Free Enterpriser, 1787-1837, in UPROOTED AMERICANS: ESSAYS IN HONOR OF OSCAR HANDLIN 97-124 (Richard L. Bushman et al. eds., 1979).
181. See LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY 17, 92-125 (1978). Joyce Appleby has challenged Banning's conclusion that Jeffersonian Republicans articulated traditional republican ideology, insisting that their ideas embodied what became known as liberalism. See JOYCE APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790s, 18-23 (1984); see also Cathy Matson & Peter Onuf, Toward a Republican Empire: Interest and Ideology in Revolutionary America, 37 AM. Q. 496 (1985) (arguing that the American revolutionary generation reconciled republican ideology with individualistic entrepreneurial activity). Banning responded effectively in a colloquy with Appleby. See Lance Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic, 43 WM. & MARY Q. 3 (1986). But see Joyce Appleby, Republicanism in Old and New Contexts, 43 WM. & MARY Q. 20 (1986). Rowland Berthoff concluded that Americans continued to utilize traditional republican rhetoric well into the 19th century, despite acting on the principles of liberalism. See Rowland Berthoff, Independence, Virtue, and Interest: From Republican Citizen to Free Enterpriser, 1787-1837, in UPROOTED AMERICANS: ESSAYS IN HONOR OF OSCAR HANDLIN 97-124 (Richard L. Bushman et al. eds., 1979).
182. See LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY 17, 92-125 (1978). Joyce Appleby has challenged Banning's conclusion that Jeffersonian Republicans articulated traditional republican ideology, insisting that their ideas embodied what became known as liberalism. See JOYCE APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790s, 18-23 (1984); see also Cathy Matson & Peter Onuf, Toward a Republican Empire: Interest and Ideology in Revolutionary America, 37 AM. Q. 496 (1985) (arguing that the American revolutionary generation reconciled republican ideology with individualistic entrepreneurial activity). Banning responded effectively in a colloquy with Appleby. See Lance Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic, 43 WM. & MARY Q. 3 (1986). But see Joyce Appleby, Republicanism in Old and New Contexts, 43 WM. & MARY Q. 20 (1986). Rowland Berthoff concluded that Americans continued to utilize traditional republican rhetoric well into the 19th century, despite acting on the principles of liberalism. See Rowland Berthoff, Independence, Virtue, and Interest: From Republican Citizen to Free Enterpriser, 1787-1837, in UPROOTED AMERICANS: ESSAYS IN HONOR OF OSCAR HANDLIN 97-124 (Richard L. Bushman et al. eds., 1979).
183. See LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY 17, 92-125 (1978). Joyce Appleby has challenged Banning's conclusion that Jeffersonian Republicans articulated traditional republican ideology, insisting that their ideas embodied what became known as liberalism. See JOYCE APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790s, 18-23 (1984); see also Cathy Matson & Peter Onuf, Toward a Republican Empire: Interest and Ideology in Revolutionary America, 37 AM. Q. 496 (1985) (arguing that the American revolutionary generation reconciled republican ideology with individualistic entrepreneurial activity). Banning responded effectively in a colloquy with Appleby. See Lance Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic, 43 WM. & MARY Q. 3 (1986). But see Joyce Appleby, Republicanism in Old and New Contexts, 43 WM. & MARY Q. 20 (1986). Rowland Berthoff concluded that Americans continued to utilize traditional republican rhetoric well into the 19th century, despite acting on the principles of liberalism. See Rowland Berthoff, Independence, Virtue, and Interest: From Republican Citizen to Free Enterpriser, 1787-1837, in UPROOTED AMERICANS: ESSAYS IN HONOR OF OSCAR HANDLIN 97-124 (Richard L. Bushman et al. eds., 1979).
184. See LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY 17, 92-125 (1978). Joyce Appleby has challenged Banning's conclusion that Jeffersonian Republicans articulated traditional republican ideology, insisting that their ideas embodied what became known as liberalism. See JOYCE APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790s, 18-23 (1984); see also Cathy Matson & Peter Onuf, Toward a Republican Empire: Interest and Ideology in Revolutionary America, 37 AM. Q. 496 (1985) (arguing that the American revolutionary generation reconciled republican ideology with individualistic entrepreneurial activity). Banning responded effectively in a colloquy with Appleby. See Lance Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic, 43 WM. & MARY Q. 3 (1986). But see Joyce Appleby, Republicanism in Old and New Contexts, 43 WM. & MARY Q. 20 (1986). Rowland Berthoff concluded that Americans continued to utilize traditional republican rhetoric well into the 19th century, despite acting on the principles of liberalism. See Rowland Berthoff, Independence, Virtue, and Interest: From Republican Citizen to Free Enterpriser, 1787-1837, in UPROOTED AMERICANS: ESSAYS IN HONOR OF OSCAR HANDLIN 97-124 (Richard L. Bushman et al. eds., 1979).
185. Abraham Lincoln, Address at Cooper Institute, New York City (Feb. 27, 1860), in 3 COLLECTED WORKS OF ABRAHAM LINCOLN 522 (arguing that the Framers tended to oppose the extension of slavery; insisting that limiting slavery geographically was not tantamount to abolishing it); Abraham Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), in 2 COLLECTED WORKS OF ABRAHAM LINCOLN 247, 276 (Roy P. Basler ed., 1953); Kenneth M. Stampp, Lincoln's History, in "WE CANNOT ESCAPE HISTORY": LINCOLN AND THE LAST BEST HOPE OF EARTH 17, 22 (James M. McPherson ed., 1995) (noting that Lincoln believed, probably incorrectly, that the signatories to the Declaration of Independence intended the document to apply to blacks). Salmon P. Chase was generally credited with developing the Republican constitutional argument, the central tenet of which was the original intention of the Framers to divorce the federal government completely from slavery, requiring it to promote freedom while slavery remained entirely a local institution. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 73-102 (2d ed. 1995).
186. Abraham Lincoln, Address at Cooper Institute, New York City (Feb. 27, 1860), in 3 COLLECTED WORKS OF ABRAHAM LINCOLN 522 (arguing that the Framers tended to oppose the extension of slavery; insisting that limiting slavery geographically was not tantamount to abolishing it); Abraham Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), in 2 COLLECTED WORKS OF ABRAHAM LINCOLN 247, 276 (Roy P. Basler ed., 1953); Kenneth M. Stampp, Lincoln's History, in "WE CANNOT ESCAPE HISTORY": LINCOLN AND THE LAST BEST HOPE OF EARTH 17, 22 (James M. McPherson ed., 1995) (noting that Lincoln believed, probably incorrectly, that the signatories to the Declaration of Independence intended the document to apply to blacks). Salmon P. Chase was generally credited with developing the Republican constitutional argument, the central tenet of which was the original intention of the Framers to divorce the federal government completely from slavery, requiring it to promote freedom while slavery remained entirely a local institution. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 73-102 (2d ed. 1995).
187. Abraham Lincoln, Address at Cooper Institute, New York City (Feb. 27, 1860), in 3 COLLECTED WORKS OF ABRAHAM LINCOLN 522 (arguing that the Framers tended to oppose the extension of slavery; insisting that limiting slavery geographically was not tantamount to abolishing it); Abraham Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), in 2 COLLECTED WORKS OF ABRAHAM LINCOLN 247, 276 (Roy P. Basler ed., 1953); Kenneth M. Stampp, Lincoln's History, in "WE CANNOT ESCAPE HISTORY": LINCOLN AND THE LAST BEST HOPE OF EARTH 17, 22 (James M. McPherson ed., 1995) (noting that Lincoln believed, probably incorrectly, that the signatories to the Declaration of Independence intended the document to apply to blacks). Salmon P. Chase was generally credited with developing the Republican constitutional argument, the central tenet of which was the original intention of the Framers to divorce the federal government completely from slavery, requiring it to promote freedom while slavery remained entirely a local institution. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 73-102 (2d ed. 1995).
188. Abraham Lincoln, Address at Cooper Institute, New York City (Feb. 27, 1860), in 3 COLLECTED WORKS OF ABRAHAM LINCOLN 522 (arguing that the Framers tended to oppose the extension of slavery; insisting that limiting slavery geographically was not tantamount to abolishing it); Abraham Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), in 2 COLLECTED WORKS OF ABRAHAM LINCOLN 247, 276 (Roy P. Basler ed., 1953); Kenneth M. Stampp, Lincoln's History, in "WE CANNOT ESCAPE HISTORY": LINCOLN AND THE LAST BEST HOPE OF EARTH 17, 22 (James M. McPherson ed., 1995) (noting that Lincoln believed, probably incorrectly, that the signatories to the Declaration of Independence intended the document to apply to blacks). Salmon P. Chase was generally credited with developing the Republican constitutional argument, the central tenet of which was the original intention of the Framers to divorce the federal government completely from slavery, requiring it to promote freedom while slavery remained entirely a local institution. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 73-102 (2d ed. 1995).
189. 83 U.S. (16 Wall.) 36 (1873).
190. Id. at 77.
191. Id. at 78.
192. See CURTIS, supra note 30, at 171-96; ROBERT J. KACZOROWKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE AND CIVIL RIGHTS 135-66, 173-93 (1985); see also FONER, supra note 49, at 529-31 (arguing that the Supreme Court, responding to public opinion, "moved a long way toward emasculating the postwar amendments" in the 1870s); KYVIG, supra note 2, at 182-87 (arguing that the ambiguously worded Reconstruction amendments "provided less protection than intended" because of narrow interpretation by the Supreme Court). William E. Nelson, who stresses the ambiguity of the meaning of the 14th Amendment, nonetheless portrays the Court's interpretations as "flatly inconsistent with the history of its framing . . . ." NELSON, supra note 28, at 163.
193. See CURTIS, supra note 30, at 171-96; ROBERT J. KACZOROWKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE AND CIVIL RIGHTS 135-66, 173-93 (1985); see also FONER, supra note 49, at 529-31 (arguing that the Supreme Court, responding to public opinion, "moved a long way toward emasculating the postwar amendments" in the 1870s); KYVIG, supra note 2, at 182-87 (arguing that the ambiguously worded Reconstruction amendments "provided less protection than intended" because of narrow interpretation by the Supreme Court). William E. Nelson, who stresses the ambiguity of the meaning of the 14th Amendment, nonetheless portrays the Court's interpretations as "flatly inconsistent with the history of its framing . . . ." NELSON, supra note 28, at 163.
194. See CURTIS, supra note 30, at 171-96; ROBERT J. KACZOROWKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE AND CIVIL RIGHTS 135-66, 173-93 (1985); see also FONER, supra note 49, at 529-31 (arguing that the Supreme Court, responding to public opinion, "moved a long way toward emasculating the postwar amendments" in the 1870s); KYVIG, supra note 2, at 182-87 (arguing that the ambiguously worded Reconstruction amendments "provided less protection than intended" because of narrow interpretation by the Supreme Court). William E. Nelson, who stresses the ambiguity of the meaning of the 14th Amendment, nonetheless portrays the Court's interpretations as "flatly inconsistent with the history of its framing . . . ." NELSON, supra note 28, at 163.
195. See CURTIS, supra note 30, at 171-96; ROBERT J. KACZOROWKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE AND CIVIL RIGHTS 135-66, 173-93 (1985); see also FONER, supra note 49, at 529-31 (arguing that the Supreme Court, responding to public opinion, "moved a long way toward emasculating the postwar amendments" in the 1870s); KYVIG, supra note 2, at 182-87 (arguing that the ambiguously worded Reconstruction amendments "provided less protection than intended" because of narrow interpretation by the Supreme Court). William E. Nelson, who stresses the ambiguity of the meaning of the 14th Amendment, nonetheless portrays the Court's interpretations as "flatly inconsistent with the history of its framing . . . ." NELSON, supra note 28, at 163.
196. See CURTIS, supra note 30, at 171-96; ROBERT J. KACZOROWKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE AND CIVIL RIGHTS 135-66, 173-93 (1985); see also FONER, supra note 49, at 529-31 (arguing that the Supreme Court, responding to public opinion, "moved a long way toward emasculating the postwar amendments" in the 1870s); KYVIG, supra note 2, at 182-87 (arguing that the ambiguously worded Reconstruction amendments "provided less protection than intended" because of narrow interpretation by the Supreme Court). William E. Nelson, who stresses the ambiguity of the meaning of the 14th Amendment, nonetheless portrays the Court's interpretations as "flatly inconsistent with the history of its framing . . . ." NELSON, supra note 28, at 163.
197. KACZOROWSKI, supra note 102, at xiii, 227.
198. Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 SUP. CT. REV. 39, 59.
199. Benedict, supra note 63, at 67.
200. PALUDAN, supra note 75, at 56.
201. See Benedict, supra note 75, at 57-59.
202. 2 ACKERMAN, supra note 1, at 251.
203. 2 id. at 245.
204. See 2 id. at 244-47.
205. See Eric Foner, The Strange Career of the Reconstruction Amendments, 108 YALE L.J. 1999, 2002 (1999)
206. KYVIG, supra note 2.
207. Id. at 481.
208. Id. at 482.
209. Id. at 483 (discussing United States v. Lopez, 514 U.S. 549 (1995)).
210. Id. at 483 (discussing United States v. Lopez, 514 U.S. 549 (1995)).
211. Reliance on the Privileges and Immunities Clause of Article IV, Section 2 would have required it to be construed as referring to a general set of rights held by all American citizens. Many Republicans held this view. James F. Wilson, the chairman of the House Judiciary Committee and manager of the Civil Rights Bill of 1866 in the House, explicitly relied on the old Privileges and Immunities Clause to justify the measure's constitutionality. See CONG. GLOBE, 39th Cong., 1st Sess. 1117-18 (1866). John A. Bingham, the author of the first Section of the 14th Amendment, interpreted the clause similarly, although he denied that Congress had the power to enforce the provisions of Article IV. He intended the 14th Amendment specifically to secure that power. See, e.g., CURTIS, supra note 30, at 62-64; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 69-71 (1993). Both Wilson and Trumbull, the manager of the Civil Rights Bill in the Senate, relied on Section Two of the 13th Amendment for the constitutional authority to enact it. See CONG. GLOBE, 39th Cong., 1st Sess. 1118-19 (1866) (statement of Sen. Wilson);
212. Reliance on the Privileges and Immunities Clause of Article IV, Section 2 would have required it to be construed as referring to a general set of rights held by all American citizens. Many Republicans held this view. James F. Wilson, the chairman of the House Judiciary Committee and manager of the Civil Rights Bill of 1866 in the House, explicitly relied on the old Privileges and Immunities Clause to justify the measure's constitutionality. See CONG. GLOBE, 39th Cong., 1st Sess. 1117-18 (1866). John A. Bingham, the author of the first Section of the 14th Amendment, interpreted the clause similarly, although he denied that Congress had the power to enforce the provisions of Article IV. He intended the 14th Amendment specifically to secure that power. See, e.g., CURTIS, supra note 30, at 62-64; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 69-71 (1993). Both Wilson and Trumbull, the manager of the Civil Rights Bill in the Senate, relied on Section Two of the 13th Amendment for the constitutional authority to enact it. See CONG. GLOBE, 39th Cong., 1st Sess. 1118-19 (1866) (statement of Sen. Wilson);
213. Reliance on the Privileges and Immunities Clause of Article IV, Section 2 would have required it to be construed as referring to a general set of rights held by all American citizens. Many Republicans held this view. James F. Wilson, the chairman of the House Judiciary Committee and manager of the Civil Rights Bill of 1866 in the House, explicitly relied on the old Privileges and Immunities Clause to justify the measure's constitutionality. See CONG. GLOBE, 39th Cong., 1st Sess. 1117-18 (1866). John A. Bingham, the author of the first Section of the 14th Amendment, interpreted the clause similarly, although he denied that Congress had the power to enforce the provisions of Article IV. He intended the 14th Amendment specifically to secure that power. See, e.g., CURTIS, supra note 30, at 62-64; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 69-71 (1993). Both Wilson and Trumbull, the manager of the Civil Rights Bill in the Senate, relied on Section Two of the 13th Amendment for the constitutional authority to enact it. See CONG. GLOBE, 39th Cong., 1st Sess. 1118-19 (1866) (statement of Sen. Wilson);
214. Reliance on the Privileges and Immunities Clause of Article IV, Section 2 would have required it to be construed as referring to a general set of rights held by all American citizens. Many Republicans held this view. James F. Wilson, the chairman of the House Judiciary Committee and manager of the Civil Rights Bill of 1866 in the House, explicitly relied on the old Privileges and Immunities Clause to justify the measure's constitutionality. See CONG. GLOBE, 39th Cong., 1st Sess. 1117-18 (1866). John A. Bingham, the author of the first Section of the 14th Amendment, interpreted the clause similarly, although he denied that Congress had the power to enforce the provisions of Article IV. He intended the 14th Amendment specifically to secure that power. See, e.g., CURTIS, supra note 30, at 62-64; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 69-71 (1993). Both Wilson and Trumbull, the manager of the Civil Rights Bill in the Senate, relied on Section Two of the 13th Amendment for the constitutional authority to enact it. See CONG. GLOBE, 39th Cong., 1st Sess. 1118-19 (1866) (statement of Sen. Wilson);
215. id. at 474-75 (1866) (statement of Sen. Trumbull).
216. See HOWARD JAY GRAHAM, Our 'Declaratory' Fourteenth Amendment, in EVERYMAN'S CONSTITUTION: HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE "CONSPIRACY THEORY," AND AMERICAN CONSTITUTIONALISM 295 (1968).
217. See 2 ACKERMAN, supra note 1, at 223-27.
218. Besides attending to the classic line of post-Reconstruction cases discussed by the works cited supra note 102, recall that the Supreme Court sustained the Civil Rights Act of 1964 not as an exercise of Congress's power to enforce the 14th Amendment under Section Five, but as an exercise of its power to regulate interstate commerce. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 300 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241, 257 (1964). Consider, in this light, City of Boerne v. Flores, 117 S. Ct. 2157 (1997), in which the Supreme Court repudiated Congress's claim of authority under Section Five of the 14th Amendment to define fundamental rights.
219. Besides attending to the classic line of post-Reconstruction cases discussed by the works cited supra note 102, recall that the Supreme Court sustained the Civil Rights Act of 1964 not as an exercise of Congress's power to enforce the 14th Amendment under Section Five, but as an exercise of its power to regulate interstate commerce. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 300 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241, 257 (1964). Consider, in this light, City of Boerne v. Flores, 117 S. Ct. 2157 (1997), in which the Supreme Court repudiated Congress's claim of authority under Section Five of the 14th Amendment to define fundamental rights.
220. Besides attending to the classic line of post-Reconstruction cases discussed by the works cited supra note 102, recall that the Supreme Court sustained the Civil Rights Act of 1964 not as an exercise of Congress's power to enforce the 14th Amendment under Section Five, but as an exercise of its power to regulate interstate commerce. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 300 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241, 257 (1964). Consider, in this light, City of Boerne v. Flores, 117 S. Ct. 2157 (1997), in which the Supreme Court repudiated Congress's claim of authority under Section Five of the 14th Amendment to define fundamental rights.