Reconstructing Reconstruction: the Supreme Court and the production of historical truth

Abstract

Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth. By Pamela Brandwein. (Durham, N.C., and London: Duke University Press, c. 1999. Pp. xii, 272. Paper, $17.95, ISBN 0-8223-2316-8; cloth, $49.95, ISBN 0-8223-2284-6.) Associate Justice Samuel F. Miller wrote for the U.S. Supreme Court majority in the Slaughter-House Cases (1873) that the amendments reveal a unity of when taken in connection with the history of the times, and that [f]ortunately that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt (p. 63). That unity of purpose, according to the Court's official memory of events, was the abolition of legal slavery and the final destruction of a state's right to secede--period. As sociologist Pamela Brandwein reminds us in this innovative study of American constitutional law as a privileged site for the production of historical truth, Miller's certainty about the consensus of historical interpretation underlying the amendments was woefully, if not willfully, misplaced. Americans have lived with the constitutional consequences ever since. Brandwein casts a sociological beam on the dimly understood interpretive work of judges to argue that, during the 1870s and 1880s, the Supreme Court institutionalized a set of contested historical assumptions that included taken-for-granted beliefs about the experiences of slavery, the Civil War, and Reconstruction (p. 19). The meaning of these experiences generated heated debate when the Civil Rights Bill of 1866 and the Fourteenth Amendment first came under consideration. Northern Democrats defined slavery as the legally sanctioned ownership of human beings and had understood the political problem of slavery as undue federal interference with popular sovereignty in the western territories. Republicans understood the historical problem of slavery more broadly, associating the institution with the suppression of civil liberties in the southern states and with a general threat to free labor. Driven by this interpretation of slavery's history, Republicans agitated for amendments that would not only abolish slavery and secession but also overthrow Barron v. Baltimore (1833), which held that the Bill of Rights applied only to the federal government. The Court, in Slaughter-House, validated the northern Democratic narrative of slavery. The decision helped the Court to shore up its controversial judgment that, contrary to Republican understanding, the Fourteenth Amendment did not incorporate the Bill of Rights and apply its provisions to the states. …