Green, "Loyal Denominatorism and the Fourteenth Amendment: Reconstruction History."

Christopher R. Green (University of Mississippi - School of Law) has posted "Loyal Denominatorism and the Fourteenth Amendment: Reconstruction History." Here's the abstract:

The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises two problems for the Fourteenth Amendment’s legitimacy: Congress (a) proposed the Amendment while excluding Southern representatives in 1866, and (b) required Southern states to ratify as a condition for readmission in 1867. Scholars like Bruce Ackerman, John Harrison, Akhil Amar, and most recently Thomas Colby have proposed a wide variety of conflicting ways to handle these problems. Ackerman explains the Amendment’s legitimacy on the basis of President Johnson’s 1868 capitulation to a non-Article-V process, confirmed by the Supreme Court in 1873. Harrison relies instead on the unreviewable finality of congressional membership decisions and pressured state ratifications, Amar on congressional power to republicanize Southern states with black suffrage, and Colby on the normative desirability of an intergenerationally-authored Fourteenth Amendment including cases like Brown and Roe.

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