In prior posts I wrote about two speeches/dialogues from 1865: Henry Garnett’s speech and sermon in the House (here and here), and the exchange between William Sherman and Garrison Frazier in Savannah. As I mentioned, these are two sources that I am looking at in my project of exploring African-American writings, speeches, and actions from the period to help think about the possible meanings of the Reconstruction Amendments. I'll now take a break from my 150-year anniversary posts to give an overview of the project.
By the 1860s African Americans had built a well-established discourse and activist community in the North. It developed with the abolitionist movement, but it also functioned as a support network for building African-American civil society in the Jim Crow culture of the North. With the end of slavery, southern black communities immediately engaged in public discussions and debates about the meaning and implementation of freedom and citizenship. And with Reconstruction, black representation in local, state, and national government was brief but substantial. The ideas discussed and advanced within the black public sphere provide an important source for how freedom and citizenship were being thought about at the time by the people for whom it meant the most. And while historians have been exploring black history from this period for a number of years, very little of this has made its way into legal or constitutional analysis.
The main exception to this has been the use of African-American sources in the Second Amendment cases, Heller and McDonald, relying in part on work by scholars (Akhil Amar, Robert Cottrol & Raymond Diamond, and others), and in Justice Thomas’s opinions on affirmative action (e.g. Grutter). Both the majority opinion and Justice Thomas’s concurrence in McDonald cite black newspapers and black conventions to support an individual rights reading of the amendment as incorporated through the Fourteenth Amendment. I don’t know about you, but this struck me as odd.