An Accompanying Narrative for Constitutional Counsel
Thank you for agreeing to review this proposal.
I recognize that constitutional attorneys are approached regularly with theories claiming to have discovered overlooked historical evidence or new constitutional interpretations. Most do not withstand careful legal scrutiny. Accordingly, I do not ask that you accept the conclusions presented here simply because I have reached them. I ask only that you examine them with the same intellectual discipline, historical honesty, and constitutional fidelity that the legal profession owes every serious constitutional question.
This proposal arises from Supreme Court Case No. 25-365, but it is not limited to that case. It asks whether the legal analysis surrounding Reconstruction has, over time, become detached from the complete constitutional and statutory framework that produced it. More specifically, it asks whether the Emancipation Proclamation, the Civil Rights Act of 1866, the Freedmen’s Bureau legislation, the Reconstruction Amendments, and the Enforcement Acts should be examined as an integrated remedial legal settlement rather than as isolated historical enactments.
The proposal further asks whether, regardless of the Court’s disposition of Case No. 25-365, the President retains continuing Article II responsibilities to faithfully execute those portions of that legal framework that remain in force today. If such responsibilities exist, what are they? Which may be exercised immediately under existing law? Which require congressional action? Which, if any, would require further judicial clarification?
Those questions lead to a proposed two-track constitutional strategy.
The first track concerns the judiciary. Counsel should determine whether legally supportable grounds exist for seeking rehearing based upon constitutional text, statutory sequence, legislative history, historical evidence, or judicial analysis that may not have received sufficient consideration.
The second concerns the Executive. Independently of any rehearing effort, the President should determine what continuing constitutional and statutory duties remain under Article II to faithfully execute the surviving provisions of the Emancipation–Reconstruction legal settlement. These two constitutional tracks are distinct, yet mutually reinforcing. They do not compete; they enhance one another.
The proposal also extends beyond litigation. It explores whether constitutional literacy concerning Reconstruction should become a matter of national importance before America enters what I describe as “Year One” of its next constitutional chapter. It examines whether a temporary national MORATORIUM devoted to constitutional study, executive review, and civic education could strengthen rather than weaken constitutional government. It further considers whether a modern institution inspired by the constitutional purposes of the Freedmen’s Bureau, together with practical restoration initiatives such as EXODUS II, may provide lawful means of advancing education, opportunity, civic participation, and national reconciliation.
The accompanying legal memorandum distinguishes carefully between three categories: established constitutional law, historical evidence, and my own proposed constitutional interpretation. I fully expect portions of the analysis to be challenged. That is precisely why I seek your review. If errors exist, I want them identified. If stronger authorities exist, I welcome them. If important distinctions have been overlooked, I ask that they be supplied. My objective is not to defend a personal theory at all costs, but to discover whether this proposal can withstand the disciplined scrutiny of experienced constitutional lawyers.
Time, however, is an important consideration. If the proposal presents substantial constitutional questions, there may be only a limited period in which counsel could determine whether any further judicial review is appropriate while simultaneously advising the President concerning any continuing executive responsibilities under Article II. I therefore respectfully ask that your initial review focus first upon the proposal’s central constitutional thesis rather than its every supporting detail.
If, after that review, you conclude that the proposal lacks legal merit, I will appreciate your candid assessment. If, however, you conclude that it raises substantial constitutional questions worthy of further examination, I respectfully ask that you assist in refining its legal analysis and, where appropriate, bringing its strongest components before the President, the White House Counsel, the Attorney General, the Solicitor General, and other appropriate constitutional officers.
The issues presented are larger than any individual case. They concern the continuing interpretation of Reconstruction, the faithful execution of federal law, and the constitutional responsibilities of each branch of government. For that reason alone, I believe they deserve careful, timely, and professional consideration.
Respectfully,
Ted Hayes