The Republican Turn Against Reconstruction

Excellent point about how contemporary Republican constitutionalism seems premised on the idea that the Civil War Amendments should be interpreted as if the Democratic Party won the 1864 elections with 2/3rds majorities in both Houses:

Roberts Court justices and their allies take the post-bellum Democratic position on American federalism. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress was free to distinguish between states that had a history of racial discrimination and those that did not. Democrats responded that permitting the Freedmen’s Bureau to exercise authority in some states rather than others violates a constitutional commitment to equal state sovereignty. Chief Justice John Roberts shares the structural views of those who opposed the post-Civil War Constitution. His opinion in Shelby County v. Holder describes the preclearance requirements of the Voting Rights Act as a “dramatic departure from the principle that all States enjoy equal sovereignty.”

Roberts Court justices and their allies take the post-bellum Democratic position on national power under the post-Civil War Amendments. During the debates over the Second Freedmen’s Bureau Bill, Republicans maintained that Congress was the institution responsible for determining what measures would best facilitate the transition from slavery to full citizens. Democrats responded that Congress under the Thirteenth Amendment could do no more than forbid slavery. Leading constitutional conservatives share the views on constitutional authority championed by those who thought Congress in 1865 powerless to strike at Black Codes. Justice Antonin Scalia’s dissent in Tennessee v. Lane asserts, “Nothing in § 5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or “remedy” conduct that does not itself violate any provision of the Fourteenth Amendment. So-called ‘prophylactic legislation” is reinforcement rather than enforcement.”

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. His opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1 insisted, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

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 with respect to the Thirteenth Amendment, 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.