Kurt Lash (University of Richmond School of Law) has posted “Lyman Trumbull’s Letter to Andrew Johnson”: Authorship, Transcript and Artificial Intelligence (26 pages) on SSRN. Here is the abstract:
Somewhere in the Library of Congress, in a box of papers donated by the estate of President Andrew Johnson, is an unsigned and undated document titled “The Civil Rights Bill.” Written sometime in March 1866, it appears to be a letter describing a draft version of the 1866 Civil Rights Bill then pending before Congress. Historians have long presumed that Illinois Senator Lyman Trumbull wrote the letter to President Andrew Johnson as part of Trumbull’s effort to secure presidential support of the Civil Rights Bill. If this is correct, then the letter is historically important and currently relevant to legal debates regarding the Fourteenth Amendment’s Birthright Citizenship Clause.
Despite its potential legal and historical significance, however, much about the letter has been shrouded in mystery. The letter is neither signed nor dated and no prior scholar has investigated whether the attribution to Trumbull is correct. Equally mysterious are the letter’s contents. The document is handwritten in a script that is exceedingly difficult, and sometimes impossible, to read. Although scholars regularly quote the relatively legible opening lines of the letter, no one has attempted, much less succeeded, in producing a full transcript of the letter. This poses a problem for those using “Trumbull’s letter” in contemporary debates over the Fourteenth Amendment. Without an historical analysis of the complete transcript, the authorship of “Trumbull’s Letter” remains at best speculative.
This essay presents the heretofore missing textual and historical analysis. Following an exhaustive investigation of the letter, its historical context, and with the assistance of artificial intelligence transcription, I conclude that the evidence strongly indicates that Lyman Trumbull authored the letter. What that conclusion lacks in drama it gains in establishing the letter’s relevance to contemporary debates about Birthright Citizenship.
This is impressive historical research and analysis by Professor Lash. But I’m skeptical the letter carries much weight in assessing the original meaning of the Fourteenth Amendment’s citizenship clause. In additional to the obvious fact that it’s not about the citizenship clause, the letter seems almost an exact instance of Justice Scalia’s hypothetical about a secret communication from one of the Constitution’s drafters. Such a secret expression of intent, Scalia said, was not especially relevant to the original public meaning of the Constitution’s text, although it might (or might not) be illustrative of the private intent of a particular person.
(Thanks to Andrew Hyman for the pointer.)
Posted at 6:26 AM