Legitimating reconstruction: The limits of legalism

Yale Law Journal

Volumn 108, Issue 8, 1999, Pages 2039-2075

  Smith, Rogers M ^a  

^a NONE

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EID: 0041541754     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797382     Document Type: Article

References (185)

1. Abraham Lincoln, Address Before the Young Men's Lyceum of Springfield, Illinois (Jan. 27, 1837), in 1 THE WRITINGS OF ABRAHAM LINCOLN 148, 160 (Arthur Brooks Lapsley ed., 1923) [hereinafter WRITINGS]. Later editors of Lincoln's works correctly date this speech as January 27, 1838. See, e.g., ABRAHAM LINCOLN: SELECTED SPEECHES, MESSAGES, AND LETTERS 5 (T. Harry Williams ed., 1957).
2. Abraham Lincoln, Address Before the Young Men's Lyceum of Springfield, Illinois (Jan. 27, 1837), in 1 THE WRITINGS OF ABRAHAM LINCOLN 148, 160 (Arthur Brooks Lapsley ed., 1923) [hereinafter WRITINGS]. Later editors of Lincoln's works correctly date this speech as January 27, 1838. See, e.g., ABRAHAM LINCOLN: SELECTED SPEECHES, MESSAGES, AND LETTERS 5 (T. Harry Williams ed., 1957).
3. For an overview of the political and ideological challenges America's nation-builders faced, see ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY 70-86 (1997).
4. Lincoln, supra note 1, at 153.
5. Id.
6. Id. at 154.
7. Id. at 159.
8. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988).
9. DAVID HERBERT DONALD, LINCOLN 485 (1995).
10. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 5 WRITINGS, supra note 1, at 327. Lincoln's apparent disregard for many constitutional restrictions was intensely controversial during his prsidency. See, e.g., DONALD, supra note 8, at 303-04, 382-83, 419-21, 441-43, 484-85, 489. The most influential scholarly case against the constitutionality of Lincoln's conduct during the Civil War was made by J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (rev. ed. 1951). The debate continues today. See, e.g., HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT, 1835-1875, at 232-78 (1982); MARK E. NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991).
11. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 5 WRITINGS, supra note 1, at 327. Lincoln's apparent disregard for many constitutional restrictions was intensely controversial during his prsidency. See, e.g., DONALD, supra note 8, at 303-04, 382-83, 419-21, 441-43, 484-85, 489. The most influential scholarly case against the constitutionality of Lincoln's conduct during the Civil War was made by J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (rev. ed. 1951). The debate continues today. See, e.g., HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT, 1835-1875, at 232-78 (1982); MARK E. NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991).
12. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 5 WRITINGS, supra note 1, at 327. Lincoln's apparent disregard for many constitutional restrictions was intensely controversial during his prsidency. See, e.g., DONALD, supra note 8, at 303-04, 382-83, 419-21, 441-43, 484-85, 489. The most influential scholarly case against the constitutionality of Lincoln's conduct during the Civil War was made by J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (rev. ed. 1951). The debate continues today. See, e.g., HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT, 1835-1875, at 232-78 (1982); MARK E. NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991).
13. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 5 WRITINGS, supra note 1, at 327. Lincoln's apparent disregard for many constitutional restrictions was intensely controversial during his prsidency. See, e.g., DONALD, supra note 8, at 303-04, 382-83, 419-21, 441-43, 484-85, 489. The most influential scholarly case against the constitutionality of Lincoln's conduct during the Civil War was made by J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (rev. ed. 1951). The debate continues today. See, e.g., HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT, 1835-1875, at 232-78 (1982); MARK E. NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991).
14. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 5 WRITINGS, supra note 1, at 327. Lincoln's apparent disregard for many constitutional restrictions was intensely controversial during his prsidency. See, e.g., DONALD, supra note 8, at 303-04, 382-83, 419-21, 441-43, 484-85, 489. The most influential scholarly case against the constitutionality of Lincoln's conduct during the Civil War was made by J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (rev. ed. 1951). The debate continues today. See, e.g., HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT, 1835-1875, at 232-78 (1982); MARK E. NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991).
15. To be sure, Lincoln always insisted that he did not believe "any law was violated" by his controversial acts, such as his suspension of habeas corpus. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 5 WRITINGS, supra note 1, at 327.
16. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS at x (1998).
17. Lincoln, supra note 1, at 148.
18. Ackerman does say that he was determined to tell the "painful" truth that Reagan had led a successful conservative constitutional transformation in the 1980s, if events had warranted it. Doubtless he was; but this determination only expresses his desire to uphold his patriotic claim that the value of American constitutionalism is so great that it overrides partisan reversals. And as matters turned out, he believes he was able to reject that unpalatable conclusion after all. See 2 ACKERMAN, supra note 11, at 420.
19. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 57 (1991).
20. 1 id. at 36. Whether it is empirically true that the American people are constituted by their "constitutional narrative" is an important issue I do not examine here, though I think it merits more skeptical scrutiny than many legal scholars give it.
21. 2 ACKERMAN, supra note 11, at 12-13.
22. See 2 id. Like Ackerman on these pages, I here take "legalistic" legitimacy to mean legitimacy resting on conformity to authoritatively "established principles and procedures" for governmental action.
23. 1 ACKERMAN, supra note 14, at 131-62.
24. 2 ACKERMAN, supra note 11, at 72; see also 2 id. at 14, 70, 342-44.
25. 2 ACKERMAN, supra note 11, at 72; see also 2 id. at 14, 70, 342-44.
26. 1 ACKERMAN, supra note 14, at 4; see also 2 ACKERMAN, supra note 11, at 3-15, 30, 344, 418-20.
27. 1 ACKERMAN, supra note 14, at 4; see also 2 ACKERMAN, supra note 11, at 3-15, 30, 344, 418-20.
28. See BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 9-10, 17-24 (1980) (eschewing legitimation in terms of a theory of the good in favor of legitimation in terms of agreements reached via constrained dialogue, a form of consensual justification).
29. See 1 ACKERMAN, supra note 14, at 7, 319-22; 2 ACKERMAN, supra note 11, at 12, 175- 76, 406-12, 419-20.
30. See 1 ACKERMAN, supra note 14, at 7, 319-22; 2 ACKERMAN, supra note 11, at 12, 175-76, 406-12, 419-20.
31. 1 ACKERMAN, supra note 14, at 314.
32. 2 ACKERMAN, supra note 11, at 6.
33. See, e.g., 1 ACKERMAN, supra note 14, at 295-322; 2 ACKERMAN, supra note 11, at 6-7, 12, 158-59, 172, 175-76, 182, 407-20.
34. See, e.g., 1 ACKERMAN, supra note 14, at 295-322; 2 ACKERMAN, supra note 11, at 6-7, 12, 158-59, 172, 175-76, 182, 407-20.
35. 2 ACKERMAN, supra note 11, at 100.
36. 2 id. at 384.
37. See 2 id.
38. One can ask the same questions about how he treats the Founding and the New Deal. Efforts to claim legitimacy according to several standards at once often contort legal reasoning generally and constitutional reasoning in particular. See Rogers M. Smith, The Inherent Deceptiveness of Constitutional Discourse: A Diagnosis and Prescription, in NOMOS XL: INTEGRITY AND CONSCIENCE 218, 219, 223 (Ian Shapiro & Robert Adams eds., 1998).
39. See 1 ACKERMAN, supra note 14, at 41-44; 2 ACKERMAN, supra note 11, at 8-12, 34-39, 100-19, 258-61; Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801, 802, 845-51 (1995). The last essay is particularly compelling evidence of how Ackerman's framework helps highlight and illuminate important but neglected issues, in this case changing treaty ratification processes.
40. See 1 ACKERMAN, supra note 14, at 41-44; 2 ACKERMAN, supra note 11, at 8-12, 34-39, 100-19, 258-61; Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801, 802, 845-51 (1995). The last essay is particularly compelling evidence of how Ackerman's framework helps highlight and illuminate important but neglected issues, in this case changing treaty ratification processes.
41. See 1 ACKERMAN, supra note 14, at 41-44; 2 ACKERMAN, supra note 11, at 8-12, 34-39, 100-19, 258-61; Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801, 802, 845-51 (1995). The last essay is particularly compelling evidence of how Ackerman's framework helps highlight and illuminate important but neglected issues, in this case changing treaty ratification processes.
42. See 2 ACKERMAN, supra note 11, at 39-65.
43. 2 id. at 66-70.
44. See 1 ACKERMAN, supra note 14, at 269-72; 2 ACKERMAN, supra note 11, at 4-5, 11, 14, 28, 70, 91-95, 116, 232, 246.
45. See 1 ACKERMAN, supra note 14, at 269-72; 2 ACKERMAN, supra note 11, at 4-5, 11, 14, 28, 70, 91-95, 116, 232, 246.
46. 1 ACKERMAN, supra note 14, at 266.
47. 2 ACKERMAN, supra note 11, at 20.
48. 2 id. at 25.
49. See 1 ACKERMAN, supra note 14, at 267.
50. See ACKERMAN, supra note 11, at 279-358.
51. See 2 id. at 406-16.
52. The New Deal story has even more stages than Reconstruction. For a schematic summary, see 2 id. at 359.
53. See 2 id. at 122-26.
54. 2 id. at 102-16.
55. See 2 id. at 126-27. Ackerman aptly quotes Senator Ben Wade's insistence that the election was waged on "the plainest and most palpable issue that ever was presented to the American people, and one that they understood the best," the issue of extending slavery, 2 id. at 128, though Wade failed to give weight to the fact that 61% of the electorate voted for candidates who supported the extension of slavery in one way or another. SMITH, supra note 2, at 271.
56. See 2 id. at 126-27. Ackerman aptly quotes Senator Ben Wade's insistence that the election was waged on "the plainest and most palpable issue that ever was presented to the American people, and one that they understood the best," the issue of extending slavery, 2 id. at 128, though Wade failed to give weight to the fact that 61% of the electorate voted for candidates who supported the extension of slavery in one way or another. SMITH, supra note 2, at 271.
57. See Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 5 WRITINGS, supra note 1, at 253-66. In this speech, Lincoln insisted that the issue of whether slavery "is wrong, and ought not to be extended" is "the only substantial dispute" between the nation's two sections. Id. at 262-63. He said that because he always believed the Constitution does not give the federal government the power to interfere with slavery in states where it already exists, he was willing to support a constitutional amendment stating so explicitly. Id. at 264-65. He also indicated that he preferred for amendments "to originate with the people themselves," id. at 264, exemplifying the kind of attention to constitution-making processes that Ackerman persuasively presents as characteristic of this era.
58. See Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 5 WRITINGS, supra note 1, at 253-66. In this speech, Lincoln insisted that the issue of whether slavery "is wrong, and ought not to be extended" is "the only substantial dispute" between the nation's two sections. Id. at 262-63. He said that because he always believed the Constitution does not give the federal government the power to interfere with slavery in states where it already exists, he was willing to support a constitutional amendment stating so explicitly. Id. at 264-65. He also indicated that he preferred for amendments "to originate with the people themselves," id. at 264, exemplifying the kind of attention to constitution-making processes that Ackerman persuasively presents as characteristic of this era.
59. See Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 5 WRITINGS, supra note 1, at 253-66. In this speech, Lincoln insisted that the issue of whether slavery "is wrong, and ought not to be extended" is "the only substantial dispute" between the nation's two sections. Id. at 262-63. He said that because he always believed the Constitution does not give the federal government the power to interfere with slavery in states where it already exists, he was willing to support a constitutional amendment stating so explicitly. Id. at 264-65. He also indicated that he preferred for amendments "to originate with the people themselves," id. at 264, exemplifying the kind of attention to constitution-making processes that Ackerman persuasively presents as characteristic of this era.
60. See Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 5 WRITINGS, supra note 1, at 253-66. In this speech, Lincoln insisted that the issue of whether slavery "is wrong, and ought not to be extended" is "the only substantial dispute" between the nation's two sections. Id. at 262-63. He said that because he always believed the Constitution does not give the federal government the power to interfere with slavery in states where it already exists, he was willing to support a constitutional amendment stating so explicitly. Id. at 264-65. He also indicated that he preferred for amendments "to originate with the people themselves," id. at 264, exemplifying the kind of attention to constitution-making processes that Ackerman persuasively presents as characteristic of this era.
61. Cf. DONALD, supra note 8, at 553-54 (discussing Lincoln's efforts to obtain Democrat support for the Thirteenth Amendment after the 1864 election).
62. See 2 ACKERMAN, supra note 11, at 136-37.
63. 2 id. at 138.
64. See 2 id. at 166-73.
65. 2 id. at 102.
66. 2 id. at 181-82.
67. See 2 id. at 190, 202.
68. 2 id. at 211.
69. 2 id. at 387.
70. See 2 id. at 60.
71. See 2 id. at 116, 120.
72. 2 id. at 26.
73. See 2 id. at 14-15, 68, 70, 91-95, 232.
74. See 2 id. at 12-13.
75. 2 id. at 12, 114, 121.
76. 2 id. at 85, 94.
77. 2 id. at 116.
78. 2 id. at 121.
79. 2 id. at 123.
80. 2 id. at 162.
81. 2 id. at 168.
82. See 2 id. at 124.
83. See 2 id. at 66-67, 124.
84. 2 id. at 147-48.
85. See SMITH, supra note 2, at 15, 511-12 n.6.
86. See 2 ACKERMAN, supra note 11, at 13-14, 88.
87. This failure does not vitiate, but it does imperil, Ackerman's important subordinate claims, featured in his first volume, that the New Deal generated legitimate constitutional amendments and that the Court engaged in valid, conscientious efforts at synthetic constitutional interpretation. These positions now need to be based more exclusively on appeal to popular consent or on some other rationale. See 1 ACKERMAN, supra note 14, at 65-67, 113-62.
88. See 2 ACKERMAN, supra note 11, at 157, 200.
89. 2 id. at 204.
90. 2 id.
91. 2 id. at 126-27.
92. See 2 id. at 132-36.
93. See DANIEL WALKER HOWE, THE POLITICAL CULTURE OF THE AMERICAN WHIGS 27-30 (1979).
94. See id. at 90-91.
95. DONALD, supra note 8, at 127.
96. Id. at 129.
97. See JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 452 (1988). See generally id. at 442-53 (describing the central legislative initiatives of the 37th Congress).
98. See JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 452 (1988). See generally id. at 442-53 (describing the central legislative initiatives of the 37th Congress).
99. See DONALD, supra note 8, at 320, 346; MCPHERSON, supra note 80 at 444.
100. See DONALD, supra note 8, at 320, 346; MCPHERSON, supra note 80 at 444.
101. See id. at 331.
102. HOWE, supra note 76, at 274.
103. See DONALD, supra note 8, at 470-74, 553-54, 563.
104. See id. at 129, 424.
105. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 5 WRITINGS, supra note 1, at 264.
106. Abraham Lincoln, Proclamation of Amnesty and Reconstruction (Dec. 8, 1863), in 7 id. at 32.
107. Abraham Lincoln, Annual Message to Congress (Dec. 6, 1864), in 7 id. at 261.
108. 2 ACKERMAN, supra note 11, at 135-36. In fact, however, James Buchanan had previously signed the "Corwin Amendment" in 1861, which would have protected slavery in the states. It was never ratified. See EDWARD MCPHERSON, THE POLITICAL HISTORY OF THE UNITED STATES OF AMERICA DURING THE GREAT REBELLION 58-64, 108 (3d ed. 1876). My thanks to Philip Klinkner and Akhil Amar for reminding me of this fact.
109. 2 ACKERMAN, supra note 11, at 135-36. In fact, however, James Buchanan had previously signed the "Corwin Amendment" in 1861, which would have protected slavery in the states. It was never ratified. See EDWARD MCPHERSON, THE POLITICAL HISTORY OF THE UNITED STATES OF AMERICA DURING THE GREAT REBELLION 58-64, 108 (3d ed. 1876). My thanks to Philip Klinkner and Akhil Amar for reminding me of this fact.
110. See DONALD, supra note 8, at 554.
111. 2 ACKERMAN, supra note 11, at 162.
112. 2 id. at 168-69.
113. 2 id. at 169.
114. DONALD, supra note 8, at 524.
115. See KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 116, 132-35, 427-33 (unpublished manuscript, on file with author). Whittington may disagree with my use of his evidence in some particulars.
116. 1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, BEFORE THE SENATE OF THE UNITED STATES, ON IMPEACHMENT BY THE HOUSE OF REPRESENTATIVES FOR HIGH CRIMES AND MISDEMEANORS 684, & 2 id. 27-28, 70, 91 (1868), quoted in WHITTINGTON, supra note 95, at 137-38; see 2 ACKERMAN, supra note 11, at 222-25.
117. 1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, BEFORE THE SENATE OF THE UNITED STATES, ON IMPEACHMENT BY THE HOUSE OF REPRESENTATIVES FOR HIGH CRIMES AND MISDEMEANORS 684, & 2 id. 27-28, 70, 91 (1868), quoted in WHITTINGTON, supra note 95, at 137-38; see 2 ACKERMAN, supra note 11, at 222-25.
118. 1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, BEFORE THE SENATE OF THE UNITED STATES, ON IMPEACHMENT BY THE HOUSE OF REPRESENTATIVES FOR HIGH CRIMES AND MISDEMEANORS 684, & 2 id. 27-28, 70, 91 (1868), quoted in WHITTINGTON, supra note 95, at 137-38; see 2 ACKERMAN, supra note 11, at 222-25.
119. 1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, BEFORE THE SENATE OF THE UNITED STATES, ON IMPEACHMENT BY THE HOUSE OF REPRESENTATIVES FOR HIGH CRIMES AND MISDEMEANORS 684, & 2 id. 27-28, 70, 91 (1868), quoted in WHITTINGTON, supra note 95, at 137-38; see 2 ACKERMAN, supra note 11, at 222-25.
120. 2 ACKERMAN, supra note 11, at 222.
121. 2 id. at 230.
122. See 2 id.
123. 1 id. at 76-77.
124. 1 id. at 79.
125. Id. at 77-79; 2 ACKERMAN, supra note 11, at 270. For a more detailed description of the Jacksonian era and the Taney Court in fundamentally similar terms, see SMITH, supra note 2, at 196-242.
126. Id. at 77-79; 2 ACKERMAN, supra note 11, at 270. For a more detailed description of the Jacksonian era and the Taney Court in fundamentally similar terms, see SMITH, supra note 2, at 196-242.
127. Id. at 77-79; 2 ACKERMAN, supra note 11, at 270. For a more detailed description of the Jacksonian era and the Taney Court in fundamentally similar terms, see SMITH, supra note 2, at 196-242.
128. See 1 ACKERMAN, supra note 14, at 77-80.
129. 3 WRITINGS, supra note 1, at 212.
130. 1 ACKERMAN, supra note 14, at 79.
131. Abraham Lincoln, Reply, First Joint Debate, at Ottawa (Aug. 21, 1858), in 3 WRITINGS, supra note 1, at 206.
132. Stephen Douglas, Speech, First Joint Debate, at Ottawa (Aug. 21, 1858), in 3 id. at 202, 198 ; see SMITH, supra note 2, at 249-51 (contrasting the Douglas and Lincoln positions on slavery and equality)
133. Stephen Douglas, Speech, First Joint Debate, at Ottawa (Aug. 21, 1858), in 3 id. at 202, 198 ; see SMITH, supra note 2, at 249-51 (contrasting the Douglas and Lincoln positions on slavery and equality)
134. . 113. DONALD, supra note 8, at 14.
135. Id. at 15.
136. Id. at 14.
137. Id. at 15.
138. Id. 118. Id. at 59.
139. See id. at 122-24, 134-35.
140. Id. at 170.
141. Id. at 226.
142. Id. at 269.
143. Id. at 270.
144. See Lincoln, To the Editor (June 13, 1836), in 1 WRITINGS, supra note 1, at 131.
145. Abraham Lincoln, Speech in Springfield, Illinois (June 26, 1857), in 2 WRITINGS, supra note 1, at 299.
146. Abraham Lincoln, Address Before the Springfield Washingtonian Temperance Society (Feb. 22, 1842), in 1 WRITINGS, supra note 1, at 274.
147. Abraham Lincoln, Speech at Peoria (Oct. 16, 1854), in 2 WRITINGS, supra note 1, at 215-16.
148. DONALD, supra note 8, at 192.
149. Abraham Lincoln, Address in the Hall of Independence, Philadelphia (Feb. 22, 1861), in 5 WRITINGS, supra note 1, at 245-46.
150. See DONALD, supra note 8, at 202, 231, 268-70, 342-43, 368, 398, 487, 563.
151. See id. at 588.
152. Stephen Douglas, Speech, First Joint Debate, Ottawa, Illinois (Aug. 21, 1858), in 3 WRITINGS, supra note 1, at 203.
153. DONALD, supra note 8, at 227.
154. See 2 ACKERMAN, supra note 11, at 127.
155. See 2 id. at 126-27, 132.
156. Id. at 158.
157. Id.
158. Id. at 159.
159. Id. 140. Id. at 164.
160. Id. at 182.
161. For accounts detailing the harms of Johnson's policies, see W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA, 1860-1880 (Atheneum 1973) (1935); ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); and SMITH, supra note 2, at 286-312
162. For accounts detailing the harms of Johnson's policies, see W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA, 1860-1880 (Atheneum 1973) (1935); ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); and SMITH, supra note 2, at 286-312
163. For accounts detailing the harms of Johnson's policies, see W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA, 1860-1880 (Atheneum 1973) (1935); ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); and SMITH, supra note 2, at 286-312
164. See 2 ACKERMAN, supra note 11, at 158.
165. 2 id. at 245; see Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
166. 2 id. at 245; see Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
167. 2 ACKERMAN, supra note 11, at 245.
168. Slaughter-House Cases, 83 U.S. at 67.
169. 2 ACKERMAN, supra note 11, at 246.
170. See 1 ACKERMAN, supra note 14, at 94-98.
171. 1 id. at 95.
172. 1 id. (quoting Slaughter-House Cases, 83 U.S. at 71).
173. 1 id. (quoting Slaughter-House Cases, 83 U.S. at 71).
174. 2 ACKERMAN, supra note 11, at 471 n.126, 474.
175. 2 id.
176. 2 id.
177. 1 ACKERMAN, supra note 14, at 79.
178. 2 ACKERMAN, supra note 11, at 163.
179. 1 ACKERMAN, supra note 14, at 79; ACKERMAN, supra note 11, at 164 n.*. The phrase "racist instincts" is unfortunate. The notion that racism is somehow "instinctive" instead of learned was produced by late nineteenth-century racialist scientific theories, theories invoked via a similar reference to "instincts" in Plessy v. Ferguson, 163 U.S. 537, 551 (1896), which upheld segregation. See SMITH, supra note 2, at 377-79.
180. 1 ACKERMAN, supra note 14, at 79; ACKERMAN, supra note 11, at 164 n.*. The phrase "racist instincts" is unfortunate. The notion that racism is somehow "instinctive" instead of learned was produced by late nineteenth-century racialist scientific theories, theories invoked via a similar reference to "instincts" in Plessy v. Ferguson, 163 U.S. 537, 551 (1896), which upheld segregation. See SMITH, supra note 2, at 377-79.
181. 1 ACKERMAN, supra note 14, at 79; ACKERMAN, supra note 11, at 164 n.*. The phrase "racist instincts" is unfortunate. The notion that racism is somehow "instinctive" instead of learned was produced by late nineteenth-century racialist scientific theories, theories invoked via a similar reference to "instincts" in Plessy v. Ferguson, 163 U.S. 537, 551 (1896), which upheld segregation. See SMITH, supra note 2, at 377-79.
182. 1 ACKERMAN, supra note 14, at 79; ACKERMAN, supra note 11, at 164 n.*. The phrase "racist instincts" is unfortunate. The notion that racism is somehow "instinctive" instead of learned was produced by late nineteenth-century racialist scientific theories, theories invoked via a similar reference to "instincts" in Plessy v. Ferguson, 163 U.S. 537, 551 (1896), which upheld segregation. See SMITH, supra note 2, at 377-79.
183. See ROGERS M. SMITH, LIBERALISM AND AMERICAN CONSTITUTIONAL LAW 207 (1985).
184. See Smith, supra note 28, at 221-23, 242-49.
185. See 2 ACKERMAN, supra note 11, at 175-76.