The relevance of a doctrine's being

Levinson SLevinson at
Mon Mar 22 13:53:33 PST 2004

We will never know what Lincoln met by "with malice toward none and charity toward all."  Som of us  believe that a "successful" Reconstruction aimed at genuine "regime change" would require quite a bit of malice toward the leaders of the Confederacy.  I think that one of the dirty secrets of American history is that "we" were probably better off with Lincoln's assassination and the replacement by the extraordinarily inept Andrew Johnson than would have been the case if the savior of the Union had lived to establish dominance over the aftermath.


-----Original Message-----
From: "Bryan Wildenthal" <bryanw at>
To: <Conlawprof at>
Date: Mon, 22 Mar 2004 09:58:53 -0800
Subject: RE: The relevance of a doctrine's being "born in bigotry"

I disagree that we cannot have SOME confidence in what Lincoln's Reconstruction policy would have been.

Is it conceivable that Lincoln would have agreed to the almost immediate readmission of the Southern States, basically unreconstructed, run by recent rebels, with their political strength bolstered by the legal conversion of the slaves from 3/5's to full "persons," but still with no black vote, and with the Black Codes?

I think not.  That was Johnson's policy. The imperative for Republicans to hang on to power and their principled desire to entrench what they saw as basic war goals would have compelled Lincoln to pursue some course similar to what the Republican Congress actually did.  Possibly more "moderate" in execution, quite likely far more effective at permanently overcoming the white Southern resistance that Johnson's obstruction inflamed and encouraged.

-----Original Message-----
From: conlawprof-bounces at
[mailto:conlawprof-bounces at]On Behalf Of Levinson
Sent: Monday, March 22, 2004 9:03 AM
To: Conlawprof at
Subject: Re: The relevance of a doctrine's being "born in bigotry"

In preparing to teach Mitchell v. Helms tomorrow, I am struck by Justice Thomas's eloquent statment that "This doctri [i.e., the Blaine Amendment's prevention of aid to religious schools], born of bigotry, should be buried now."  What I can't help thinking of, however, is that a variety of "state action" cases were also "born in bigotry" (think of US v. Harris for starters), i.e., part of the "settlement" of Reconstruction by accepting the return of white hegemony in the South and the disregard of tyranny directed against African Americans, so long as a fig-leaf of "private action" could be found.  (Think also of the Civil Rights Cases, the basic rock upon which the Court builds Morrison.)  The Court usually writes as if the Civil War never happened or, to be a bit fairer, as if the proper understanding of the War were Andrew Johnsons's (i.e., no secession, no formal slavery), and not, say, Charles Sumner's.  (It would be too tendentious to invoke Lincoln, for there is truly no reason to have confidence as to what his Reconstructions policies would have been.)  

Just some musings about the "unneutrality" of deciding when we look to history to provide the context for what is (or, as in the case of the Blaine Amendment, not) in the Constitution.


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