The fact that Black Americans played a pivotal role in the formation and adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments would not come as a surprise to historians of the Reconstruction period working today. Scholars ranging from W.E.B. DuBois to Eric Foner to Kate Masur, and many in between, have painted a rich picture of the activism and engagement of enslaved and formerly enslaved persons and free Blacks, who participated directly in the meaning-making of the Second Founding.
Unfortunately, this remarkable history goes largely unacknowledged by contemporary legal scholars and jurists, including some of those on the Supreme Court. It is this gap between historical reality and jurisprudential attention that David H. Gans seeks to close in his forthcoming article Forgotten Framers: Black Conventions and the Second Founding.
Gans argues that we cannot understand the meaning of the Reconstruction amendments without taking into account their full history, which includes the particular and specific vision of equal citizenship crafted by Black activists and reformers. As Gans demonstrates, any proponent of understanding the Constitution based on “original public meaning” must take account of the role that Black Americans played in the meaning-making.
Forgotten Framers draws from a rich trove of records of speeches, debates, petitions, and declarations from a relevant sample of the dozens of Black conventions held between 1864 and 1869. These convenings ranged in size and focus, from large national conventions with several hundred attendees to smaller state and local gatherings, but all were concerned in one way or another with charting the way forward in the Black freedom struggle. Attendees and speakers included those who already had national prominence in the abolition movement, such as Frederick Douglass and John Mercer Langston, as well as those who were complete newcomers to political activism. Delegates included hundreds of recently emancipated persons who, for the first time, had the chance to speak freely and openly in support of their rights. The level and range of participation was unprecedented. As the proceedings of the Georgia Freedman’s Convention of 1866 remarked, “[w]ho one year ago would have thought that the slaves of the Empire State, in the short space of twelve months, would have the right to assemble in convention and deliberate like their masters,” including demanding that “they must have [the]ir rights according to them if peace and prosperity as the desire in the future.” (27)
The proliferation of Black activism in this period and its expression at these conventions gives Gans a wealth of material, enabling him to paint a compelling portrait of Black constitutionalism. He shows how delegates drew from the experience of profound suffering and deprivation under chattel slavery to craft a vision of the rights required in a multiracial democracy. This vision – inspired in part by the foundational guarantees of the Declaration of Independence – included not just civil rights like the right to own property but also political ones like the right to vote and social ones like the right not to be discriminated against in public or private. Delegates identified rights to bodily integrity and education as fundamental. They excoriated racial prejudice, naming it as an existential threat, and demanded government protection from violence. They embraced not just negative rights (freedom from government interference or prejudice) but also positive obligations (government’s role in meeting needs and providing access). And they did not subscribe to a purely “color-blind” idea of the Constitution. Delegates insisted that there were times, such as in the selection of jurors, when it would be necessary to facilitate the representation of Black individuals. Ensuring equality and remedying the wrongs of the past meant that the law would sometimes need to be race-conscious, not race- blind.
Importantly, Gans doesn’t just trace these core elements of Black constitutionalism but also reminds readers how these ideas directly influenced constitutional reform and ratification. Gans explains that the vision of equal citizenship expressed during the conventions was not initially shared by most white lawmakers in Congress, to put it mildly. At the conclusion of the Civil War, even sympathetic white Republicans proposed reforms that would fall far short of full emancipation. Some for example thought granting a few select civil rights would be sufficient, not seeing the necessity of guaranteeing political rights like voting and jury service. It was only with the influence and prodding of Black Americans that the Reconstruction amendments took the form that they did.
Gans provides a range of evidence for this point, including the widespread coverage of the Black conventions in the press, the inclusion of and citation to the declarations and petitions in the congressional record, and the various audiences that delegates had with lawmakers throughout this period. Persistent activism for Black voting rights led to the passage of the Reconstruction Act, which in turn provided the possibility for ratification of the Fourteenth and Fifteenth Amendments, which were enthusiastically supported by the newly enfranchised citizens. As Gans summarizes, “[i]n a very real sense, Black Americans were constitution-makers, whose activism helped ensure that the Amendments that secured their freedom and equal citizenship bore their imprint to the greatest extent possible.” (P. 45.)
This historical evidence sets the stage for Gans’s jurisprudential critique. Contemporary jurists, in failing to include these understandings as part of the public meaning, have profoundly misinterpreted these constitutional guarantees. As he writes, courts currently “present history as if white voices and views were the only ones that mattered.” (P. 44.) In ascertaining the meaning of the amendments, they look almost exclusively to congressional debates (in which white men vastly predominated) and to letters and publications by elite white men. This elision erases Black voices from that history, despite their centrality to the amendments’ creation and ratification. This both deprives us of a full picture of the laws’ meaning and perpetuates historical exclusion.
What would it look like to take into account the understanding of equal citizenship offered in the Black conventions? Gans argues that taking these perspectives seriously will necessitate a change to the current trend line in constitutional interpretation. Gans identifies four principles that, as a normative matter, could and should be strengthened by this more inclusive constitutional history: the protection of unenumerated rights; the guarantee of state protection from prejudice based on discriminatory impact alone (regardless of intent or purpose); an expansive understanding of congressional enforcement powers; and an acknowledgement that race consciousness can be required in order to achieve true justice and equality.
In critiquing the failures of courts to attend to this history, Gans joins the ranks of a growing chorus of scholars who have taken jurists to task for claiming to interpret the Constitution based on “history and tradition” but proffering only a crabbed, elitist, and incomplete view of that history. Examples of this include recent work by Reva Siegel, Jack Balkin, Gregory Ablavsky and W. Tanner Allread (reviewed here and here in Jotwell), among others. Forgotten Founders is an important and timely addition to this canon, setting the stage for a more accurate interpretive framework.
