Reconstructing Reconstruction: Some Problems for Originalists (and for Everyone Else, Too)

Journal of Constitutional Law, Vol. 11, No. 5, 2009

NYU School of Law, Public Law Research Paper No. 09-32

39 Pages Posted: 21 May 2009  

Barry Friedman

New York University School of Law

Date Written: May 18, 2009

Abstract

Reconstruction, America's Second Founding, plays a remarkably small role in constitutional theory. This paper, prepared as part of a symposium aimed at addressing that neglect, discusses the serious interpretive problems posed by an attempt to work Reconstruction - and its aftermath - into the constitutional canon. These problems range from the paucity of extant materials to help understand the intentions of the ratifiers of the Fourteenth Amendment, to the lack of any place in constitutional theory for dealing with constitutional events amendments the country ratifies then effectively rejects. Problems such as these pose an almost insurmountable difficulty for originalists - but they don't make life easy for other interpretive methodologies either. This paper bears upon the history of the Reconstruction Amendments, as well as interpretive theory.

Suggested Citation

Friedman, Barry, Reconstructing Reconstruction: Some Problems for Originalists (and for Everyone Else, Too) (May 18, 2009). Journal of Constitutional Law, Vol. 11, No. 5, 2009; NYU School of Law, Public Law Research Paper No. 09-32. Available at SSRN: https://ssrn.com/abstract=1406713

Barry Friedman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

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