Every generation inherits both the achievements and the unfinished responsibilities of those who came before it.
The generation of 1776 secured independence. The generation of the Civil War preserved the Union. The Reconstruction Congress sought to secure the civil status and equal protection of millions of formerly enslaved persons through constitutional amendments and landmark legislation, including the Civil Rights Act of 1866. Subsequent generations have continued to interpret and apply those constitutional provisions in light of changing circumstances and evolving jurisprudence.
This memorandum presents the author’s legal interpretation that important questions remain concerning the relationship between the Civil Rights Act of 1866 and the Fourteenth Amendment, and that these questions deserve renewed examination. The memorandum argues that understanding the historical context surrounding the enactment of the 1866 Act—including President Andrew Johnson’s vetoes and Congress’s override—may assist in evaluating the original purposes of Reconstruction legislation and the constitutional issues that followed.
The memorandum further contends that these historical questions have practical contemporary implications. If foundational constitutional premises are misunderstood, the resulting interpretations may affect the application of laws enacted for particular historical purposes. Accordingly, the memorandum urges careful legal review rather than presuming that all relevant historical considerations have already been exhaustively examined.
The objective is not to diminish the rights of any person protected under the Constitution or laws of the United States. Rather, it is to encourage careful constitutional analysis of legislation enacted during Reconstruction, its intended beneficiaries, and the legal doctrines that have developed over the succeeding century and a half. Such analysis, the memorandum argues, may strengthen rather than weaken public confidence in constitutional government.
For these reasons, this memorandum respectfully requests consideration of two complementary constitutional paths. First, where legally available, it asks that the relevant judicial issues receive further review through appropriate procedures governing petitions for rehearing. Second, it requests that the Executive Branch consider the scope of its constitutional and statutory responsibilities in administering and enforcing Acts of Congress enacted pursuant to the Constitution.
The Nation has repeatedly demonstrated that constitutional fidelity sometimes requires the willingness to reexamine long-settled assumptions in light of historical evidence and careful legal reasoning. Whether in correcting past constitutional errors, extending equal protection, or vindicating statutory rights previously overlooked, constitutional development has often depended upon a renewed examination of first principles.
It is in that tradition of respectful constitutional inquiry that this memorandum proceeds.