Negating Justice Scalia’s Advantage

Primary source documents from the Constitution’s founding era are all over the internet-at the Avalon Project,, and Everyone from Antonin Scalia on down can find full-text, searchable versions of the Federalist Papers, James Madison’s notes on the Philadelphia debates, and state-by-state ratification statements with a quick Google search. If the Constitution had stopped changing in 1791, we’d have easy access to all the materials necessary for justifying and evaluating arguments about the original meaning of our Nation’s most important document.

But the Constitution obviously did not stop changing in 1791. Most importantly, the 14th Amendment (ratified in 1868) altered the document in significant ways– ways that those, like Scalia, who argue that we have an “immutable” Constitution tend to ignore or minimize as they imply that we should focus on the fixed actions of the Revolutionary era.

Unfortunately for anyone who wants to study the ratification history of the 14th Amendment as thoroughly as that of the Constitution, the important documents from the era are not nearly as acessible online. The canonical speeches of John Bingham, Jacob Howard, and Thaddeus Stevens, the principal framers of the 14th Amendment, are buried in an unsearchable format in the pages of the Congressional Globe. Yet no one has launched a public and concerted effort to find and publish, say, significant newspaper editorials surrounding the ratification debates. The most important documents surrounding the 14th Amendment’s creation and ratification remain largely inaccessible to the general public.

The dearth of publicly available primary source documentation related to the Reconstruction Amendments has a number of negative consequences. Conservative “originalists” like Scalia and Clarence Thomas can continue to largely ignore or mitigate the revolutionary intentions of the 14th Amendment’s creators as long as the documents remain unavailable. Other commentators can take Bingham’s words out of context to argue for a severely truncated understanding of the 14th. The American people as a whole, unexposed to the viable alternative view, continue to associate fidelity to the Constitution’s text with the least progressive elements of the Founders’ original Constitution-a number of which were reconstructed wholesale in 1868.

At the Constitutional Accountability Center, we (obviously) think the Amendments are every bit as important as the Constitution’s original text. Assembling, publishing and publicizing the Reconstruction-era documents that tell the story of the framers who wrote slavery and discrimination out of the Constitution is an important part of our mission. Over the course of this summer, we will be building out a new section of our website devoted to the history of the Reconstruction Amendments, and posting on some of the results here at Text and History. Stay tuned…