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November 18, 2019|Armies of Deliverance, Elizabeth Varon, Reconstruction, Representative Hamilton Ward

Northerners’ Failed Mission in the Civil War: Saving the South

by Allen Guelzo|

Elizabeth Varon’s impressive Civil War history contributes to an emerging new theory about why Reconstruction failed.

August 5, 2019|A Fool’s Errand, Albion Tourgée, Homer Plessy, Jim Crow, Justice Henry Billings Brown, Justice John Marshall Harlan, Plessy v. Ferguson, Privileges and Immunities Clause, Reconstruction, Separate, Steve Luxenberg

Segregation Setback: The Story of Plessy v. Ferguson

by Sean A. Scott|

Everyone knew that successfully overturning Jim Crow laws was a long shot. Here are the men who tried.

January 2, 2019|Andrew Johnson, Antifederalists, Barry Goldwater, Conservatism, Federalists, Jeffrey Tulis, Legacies of Losing, New Deal, Nicole Mellow, Reconstruction

Beautiful Losers in American Politics: A Conversation with Nicole Mellow

by Nicole Mellow|

Nicole Mellow on the beautiful losers in American politics who have redefined the country.

December 3, 2018|Abraham Lincoln, Alan Levine, Civil War Amendments, Fourteenth Amendment, James R. Stoner Jr., John Bingham, John Holmes, Reconstruction, Thomas Jefferson, Thomas W. Merrill

Was It a Refounding?

by Sean A. Scott|

A new essay collection examines the political thought of the Civil War and Reconstruction.

May 9, 2016|Gold and Freedom, Horace Greeley, Midwest, Nicolas Barreyre, President Andrew Johnson, Reconstruction, tariffs

The Sectional Politics of Reconstruction

by Herman Belz|

Gold and Freedom is an ambitious account of Southern Reconstruction after the Civil War interwoven with national currency and tariff policy. Nicolas Barreyre, Associate Professor at the École des Hautes Études en Sciences Sociales, views Reconstruction as a reordering of the American republic that exceeded in scope the constitutional-legal problem of restoring the former Confederate states to the Union. According to Barreyre, the Southern project called for a redefinition of the American nation, citizenship, the relationship of the people to the body politic, and “the economic model and the type of social relations on which it depended.” In short, “it is…

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January 19, 2016|affirmative action, Originalism, Reconstruction

Gans on Reconstruction and Affirmative Action

by Mike Rappaport|

At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment.  Gans makes two points:

First, he claims that in

the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment.  (The Supreme Court has said as much repeatedly.)  In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons.

Gans point here is problematic.  It is true that during these debates, people often argued about equality.  But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement.  It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government. 

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January 5, 2016|14th Amendment, Originalism, Reconstruction

Who Are the True Heirs of the Reconstruction Republicans?

by Mike Rappaport|

In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . .  what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Graber’s argument, which has also been made in the literature, is not persuasive.  In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.

Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue. 

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April 15, 2015|Abraham Lincoln, Ossian Bingley Hart, Reconstruction

The Reconstruction that Might Have Been

by Philip B. Lyons|

Lincoln died 150 years ago today. Some time ago, I visited a jeweler’s shop in Northern Virginia and noticed that all the wall clocks were set at 7:22. The shopkeeper had done this because that was the time of the morning on April 15, 1865 when Lincoln expired.

People honored, and honor, his memory for having saved the Union but also for what he might have done to bind up the nation’s wounds after the war was over. For during the war Lincoln had developed an approach that had the best chance of meeting the challenge of Reconstruction, what he called “the most difficult question of practical statesmanship.”

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November 21, 2014|Civil Rights Cases of 1883, Lewis Harvie Blair, Reconstruction

Free Markets, Racial Equality, and Southern Prosperity: The Rise and Fall of Lewis Harvie Blair

by James M. Patterson|

Celebrating Emancipation Day, Richmond, VA 1905.

Lewis Harvie Blair remains one of the most curious and frustrating figures of post-Reconstruction Virginia. Blair, called by historian Charles E. Wynes one of the forgotten voices of opposition to segregation, distinguished himself by exposing the failure of “New South” industrial development and illustrating the economic benefits of racial integration. The Richmond businessman and writer held that the only way to rebuild industry in the South was to integrate all public-facing facilities and schools, invest in the education of workers, and reinstate the protection of African Americans’ civil rights.

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November 10, 2013|Racial Discrimination, Racial Preferences. Schuette v. Coalition to Defend Affirmative Action, Reconstruction

Historical Nonsense in Schuette

by David Upham|

In a pending case, Schuette v. Coalition to Defend Affirmative Action, the Supreme Court faces the claim that the Fourteenth Amendment prohibits Michigan and every other state from including, within its constitution, a prohibition on any state racial discrimination, even if such discrimination might favor a racial minority. Several briefs, including a brief filed by 76 professional historians, present evidence allegedly supporting this contention.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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