Barry Friedman (New York University School of Law) has posted Reconstructing Reconstruction: Some Problems for Originalists (and for Everyone Else, Too) (Journal of Constitutional Law, Vol. 11, No. 5, 2009) on SSRN. Here is the abstract:
Reconstruction, America's Second Founding, plays a remarkably small role in constitutional theory. This paper, prepared as part of a symposium aimed at addressing that neglect, discusses the serious interpretive problems posed by an attempt to work Reconstruction - and its aftermath - into the constitutional canon. These problems range from the paucity of extant materials to help understand the intentions of the ratifiers of the Fourteenth Amendment, to the lack of any place in constitutional theory for dealing with constitutional events amendments the country ratifies then effectively rejects. Problems such as these pose an almost insurmountable difficulty for originalists - but they don’t make life easy for other interpretive methodologies either. This paper bears upon the history of the Reconstruction Amendments, as well as interpretive theory.
A must read! But I am a bit confused by Friedman's characterization of originalist methodology--which seems to almost completely ignore the move to public meaning. Friedman seems to believe that contemporary originalists focus on something like the original understandings of the ratifiers--where such understandings are expectations about applications. This position is certainly not the position of many prominent New Originalists and is not "original public meaning originalism."
