The "Black and Tan Conventions", Diverse Originalism, and the Fourteenth Amendment

Authors

David R. Upham

Document Type

Article

Publication Title

Mississippi Law Journal

Abstract

Our Republic, for a half century now, has officially observed Black History Month. President Gerald Ford began this official observance with a proclamation in February 1976. Since then, every President has done the same and thus established what appears to be an American tradition. By the original proclamation, the President announced that “[in the] Bicentennial year of our Independence,” we should “review with admiration the impressive contributions of black Americans to our national life and culture.” We must, he elaborated, “seize the opportunity to honor the too-often neglected accomplishments of black Americans in every area of endeavor throughout our history.” This short essay will speak on one neglected “impressive contribution” to “our national life” —and in this case, the making of our Constitution. In particular, this essay will discuss the work of the so-called “Black and Tan Conventions,” the biracial state constitutional conventions held in the former-rebel states during Reconstruction. Through those conventions, Southern black loyalists, in cooperation with Southern white loyalists, not only drafted new state constitutions but participated substantially in making the Fourteenth Amendment to our national Constitution. This essay will proceed in three parts, corresponding to the following conclusions: (1) that the work of these Conventions was necessary to the making of the Fourteenth Amendment; (2) that this work provides critical, if not dispositive, evidence as to that Amendment’s original meaning; and (3) that members of the bench, bar, and academy have unjustly neglected this contribution. This neglect has become a deafening silence among those advocating racial diversity or originalism and the combination thereof as “diverse originalism.”

First Page

1403

Last Page

1424

Publication Date

2025

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