238 ANALYZING DATA
prestige, and Fairman was embedded in a Harvard network. The interpretive framework of that
community structured Fairman’s reconstructive practices. This community also validated
Fairman’s conclusions.
In recent times, the status of Fairman’s history has declined in the legal academy. This, too,
can be linked to institutional developments. Crosskey’s damaged reputation is less salient to
contemporary readers, enabling his incorporation thesis to be assessed independently from re-
sponses to his 1953 book. More important, Crosskey’s incorporation thesis has gained credibility
thanks to a major development in law schools since the Second Reconstruction: the establishment
of a revised history of Reconstruction, which recovers “old” Republican political and constitu-
tional theory (Graham 1968; Wiecek 1977). When Crosskey first pointed to this “old” theory in
1949, there was no literature to support his contention. William Dunning (1907) and his followers
(Bowers 1929; Fleming 1919) supplied the dominant Reconstruction history at that time, a his-
tory that portrayed the Republicans in highly distorted and negative terms. Dunning School his-
tory provided legitimacy to Fairman’s account, which invoked the dominant negative image of
the Republicans.
Dunning School history is now rejected by historians. Eric Foner’s (1986) history of Recon-
struction is widely accepted, and this has provided a foundation for Crosskey’s newfound cred-
ibility. Indeed, a network of scholars in the interpretive community that accepts Foner is currently
nourishing Crosskey’s incorporation thesis. Mapping the recent upturn in the trajectory of cred-
ibility that attaches to Crosskey’s account requires mapping citations not only to Foner, but also
to the legal scholar Michael Kent Curtis (1986), whose work has done the most to resuscitate
Crosskey’s incorporation thesis. The credibility of Curtis’s work is supported not only by Foner
but by the work of legal historians since the Second Reconstruction. Large-scale developments in
both history and legal history have thus provided a foundation for the increasing acceptance of
Crosskey’s account.Scholarly Orthodoxy and the Civil Rights CasesThe same scholarly movement in the legal academy that has supported the resuscitation of Crosskey
supports the marginalization of a different knowledge claim—that of Frantz in 1964—that also
has a significant degree of historical merit. The careers of Crosskey’s claim and Frantz’s claim
intersect, and this intersection brings cautionary lessons for researchers who view the resuscita-
tion of Crosskey as an unqualified “good” and as a triumph of justice and fairness.
Laurent B. Frantz is part of a new debate emerging in the legal academy. This debate concerns
the proper interpretation of a crucial Fourteenth Amendment decision, the Civil Rights Cases
(1883).^28 This decision is conventionally viewed as the foundation of “state action” doctrine, the
rule that Fourteenth Amendment rights are protected against infringement by the government but
not by private persons.^29 An important corollary, presumed to follow logically, is the rule that
Congress may not regulate private action under its Section 5 power to enforce the Amendment.^30
This corollary was Frantz’s target.
In 1964, Frantz challenged this corollary, which scholars viewed as established in the Civil
Rights Cases and other decisions of the time.^31 He argued that these decisions had been misread
and that they in fact supported congressional power to regulate private, racially motivated
crimes under the Fourteenth Amendment when states failed to redress those wrongs. Accord-
ing to Frantz’s reading, state failure to punish crime equally was “state action” within the meaning
of the Fourteenth Amendment, and Congress could remedy this violation by punishing the
crimes the state left unremedied. Frantz’s reading of these cases was a “competing possible”