Formalism, Reality, and Perception
posted by Gerard Magliocca
I want to compare two men and their reputations. One man wrote “All men are created equal” in the Declaration of Independence. That ideal was hollow for many Americans for a long time (slaves, Native Americans, women, etc.). Nonetheless, he is widely admired and people accept that what he said was an aspiration that the nation is always striving to make real. The other man wrote the Equal Protection Clause into the Constitution. That ideal was also hollow for many Americans for a long time (African Americans, Native Americans, women, etc.) He is not widely admired or known, though, and the period of history that he was a part of it is considered a failure. Most people do not consider Reconstruction aspirational–they focus on its shortcomings.
Why is that? Perhaps it’s because Jefferson did a lot more in his life than John Bingham, and so we cut Jefferson more slack. Maybe it’s because Reconstruction made law (whereas the Declaration did not), and thus we have higher or more concrete expectations for the Fourteenth Amendment. I’m not sure, but it is an interesting question. The Founders generally get a pass on their mistakes, but the Reconstruction Republicans do not.