The relevance of a doctrine's being

[Lynne]

Sandy, can you possibly mean that it is a *good* thing that the South pretty
much got its way?  Congress could override Johnson--and did--but the real
travesty was the abandonment of Reconstruction.  And some malice towards the
Confederacy seems warranted.
Lynne
Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland Pkwy
Box 451003
Las Vegas, NV  89154
702-895-2625
----- Original Message ----- 
From: "Levinson" <SLevinson at mail.law.utexas.edu>
To: <bryanw at tjsl.edu>
Cc: <Conlawprof at lists.ucla.edu>
Sent: Monday, March 22, 2004 11:53 AM
Subject: Re: RE: The relevance of a doctrine's being


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.

sandy

-----Original Message-----
From: "Bryan Wildenthal" <bryanw at tjsl.edu>
To: <Conlawprof at lists.ucla.edu>
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 lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Levinson
Sent: Monday, March 22, 2004 9:03 AM
To: Conlawprof at lists.ucla.edu
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.

sandy

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