Liquidating Reconstruction

Post-ratification history has long been used as evidence of original understanding. But in recent years, post-ratification history has been invoked more expansively. Under the liquidation theory of constitutional interpretation, a course of deliberate practice can liquidate and thus settle the meaning of an ambiguous constitutional provision. As in other areas of constitutional law, the Founding and its aftermath loom large, and liquidation has been developed under the assumption that those who adopted a constitutional provision will remain in power and implement it in good faith. But Reconstruction, Redemption, and Jim Crow problematize this newfound fascination with post-ratification history. The Reconstruction Amendments were backed almost exclusively by Republicans. After these Amendments’ adoptions, Republicans passed several enforcement acts protecting the rights of freed people, which are persuasive evidence of the original understanding of the Reconstruction Amendments. Reconstruction, however, was notoriously short-lived. As Democrats seized power across the South, they undermined Reconstruction’s gains and disenfranchised the overwhelming majority of Black men. This backsliding raises the question whether Redemption and Jim Crow liquidated—and thus subverted—the Reconstruction Amendments. This Article unpacks numerous open questions about liquidation with an eye toward Reconstruction and its downfall. Using voting qualifications as a case study, this Article outlines how certain potential factors in the liquidation analysis—such as contemporaneousness, duration, motive, and democratic assent—impact the analysis of the Reconstruction Amendments. Specifically, if liquidation counts no contemporaneous practices and does not require democratic assent, then Redemption and Jim Crow plausibly—and alarmingly—liquidated the Reconstruction Amendments. More broadly, this Article posits that liquidation may need to be tailored for the Reconstruction Amendments and that a deferential approach to Congress’s Reconstruction Amendment enforcement authority may be a preferable solution that sidesteps many of liquidation’s pitfalls. This Article is particularly timely as next year marks the 150th anniversary of the end of Reconstruction. Our nation must reckon with the consequences of Reconstruction’s failure. This Article calls for constitutional law and liquidation theory to take that tragedy seriously.