David Gans of the Constitutional Accountability Center has posted his draft on SSRN, forthcoming in the Stanford Law Review. Here is the abstract:

This Article tells the forgotten story of the Black Conventions of the Reconstruction era, examining convenings of Black Americans across the nation during the time when the Thirteenth, Fourteenth, and Fifteenth Amendments were under consideration. Invoking the promises of liberty and equality contained in the Declaration of Independence, these conventions insisted on Black Americans’ right to respect and dignity, fought for control of their bodies and their right to be full members of the body politic, including at the polls, and demanded an end to racial prejudice and violence that kept them in a subjugated status. Through their relentless activism, Black Americans repeatedly pressed white Americans to make the United States into a multiracial democracy that guaranteed fundamental rights, protection, and equal citizenship as an American birthright. In large measure, the Amendments that produced our Second Founding bore the imprint of this constitutional activism.

While critical to understanding the meaning of the Reconstruction Amendments, this history has never gotten its due. Dominant judicial and scholarly accounts of the text and history of the Reconstruction Amendments privilege elite white understandings, presenting history as if white voices were the only ones that mattered. As this Article demonstrates, this impoverishes our understanding of the Reconstruction Amendments and ignores how the Black Convention movement of the Reconstruction era shaped the transformational guarantees in those Amendments. Grappling with the work of the Black Conventions can help generate an inclusive constitutionalism, deepen our understanding of the text and history of the Reconstruction Amendments, provide resources to resolve current constitutional disputes, and help recover fundamental constitutional principles the Supreme Court has long betrayed.

I’m really looking forward to reading this important paper!