Evan D. Bernick (Northern Illinois University College of Law) has posted Against Constitutional Iconoclasm (reviewing Mark Graber, Punish Treason, Reward Loyalty [University Press of Kansas, 2023]) (32 pages) on SSRN. Here is the abstract:
Mark Graber's "Punish Treason, Reward Loyalty" (PTRL) is a compelling work of constitutional iconoclasm, calculated to discourage the civic veneration which the Fourteenth Amendment to the U.S. Constitution has long received. This article is in roughly equal parts a review of Graber's book and a reflection upon normative questions regarding constitutional power which PTRL raises but does not address.
Graber contends that the Fourteenth Amendment was primarily designed by its Republican Framers to entrench Republican power, not to establish racial equality. The Fourteenth Amendment’s history, language, and design reflects that racial equality was but one of many things that Republicans cared about. And Republicans sacrificed racial equality to what they regarded as more pressing constitutional priorities.
I advance three criticisms. First, Graber only briefly engages Fourteenth Amendment scholarship which explores the meaning of the Amendment’s language, and his strident claims about it put him well ahead of his evidence. Second, the most arresting claim in PTRL is that the value of Black rights was for most of the Fourteenth Amendment’s Framers contingent upon their utility to “white interests.” But Graber doesn’t specify the nature of those interests, and the evidence which he presents is equivocal. Third and finally, Graber’s elite-centered approach to Republican constitutionalism neglects constitutional power which nonelites—particularly Black nonelites—built and wielded in spite of unjust exclusions.
I conclude with an extended reflection upon the normative dimensions of constitutional power, drawing upon the work of two of the boldest iconoclasts in human history: Benedict Spinoza and W.E.B. Du Bois. Both saw a world of difference between exercising democratic power with others in mutually beneficial ways and exerting dominating power over others at others' expense. Both sought to build the former and destroy the latter. To that end, both deployed narratives about the rise and fall of democratic constitutions in order to engage and inspire readers. Graber’s reluctance to get normative doesn’t cause him to miss the constitutional plot, but there are more stories to tell.
Posted at 6:23 AM