Recently published, in the Journal of American Constitutional History, Rachel A. Shelden (Penn State, history): Finding Meaning in the Congressional Globe: The Fourteenth Amendment and the Problem of Constitutional Archives (2 J. Am. Con. Hist. 715 (2024)) (19 pages). Here is the abstract:
Few legislative terms left a bigger mark on U.S. constitutional law than the first session of the Thirty-Ninth Congress, which met from December 1865 through July 1866. Although legislative history has become more controversial in modern legal interpretation amid the rise of public meaning originalism, this ses-sion and the men who drafted the Fourteenth Amendment so fundamentally altered the constitutional politics of modern America that their stories remain the subject of deep scholarly interest and fierce debate. InPunish Treason, Reward Loy-alty, Mark Graber takes a comprehensive look at this session through theCongressional Globe—which then served as the “official” records of the legislative branch—to explain the broader constitutional and political considerations of the men who framed the Fourteenth Amendment. Using theGlobe’s text, Graber ar-gues that Sections 2, 3, and 4 were the heart of that amendment, rather than the better-known Section 1. Yet, a closer look at the context in which theCongressional Globeoperated shows that such debates were far from an accurate depiction of con-gressional business. Instead, theGlobe’s pages contained an outsized number of “buncombe” speeches designed for constituents rather than for persuading or ne-gotiating with colleagues; the men who make up Graber’s book used these speeches as a tool of dialogue with the broader public. Ultimately, theGlobe may tell us just as much about the public meaning of the Fourteenth Amendment—and many other constitutional and statutory concerns—as it does about legislative intent.
(Via Larry Solum at Legal Theory Blog, who says "Interesting and recommended.")
Posted at 6:30 AM