240 ANALYZING DATA
This new wave of legal scholarship was strengthened by the work of academic historians. A
major revision of Reconstruction history was going on in history departments,^34 and citations to
the work of academic historians by law professors became easily observable at this time.^35
Other developments in law schools reinforced this cross-fertilization, for example, a new law-
and-history movement in the legal academy (Kalman 1996). Understanding how the commit-
ments of law professors contributed to the marginalization of Frantz requires mapping these
cross-institutional dynamics.
We must be careful investigating the effects of this legal historiography, however, for they are
complex. The legal historiography that helped marginalize Frantz—the one that recovered the
old political and constitutional theory of the Republican framers of the Reconstruction Amend-
ments, along with condemning the Waite Court for the supposed abandonment of this vision—
also provided the foundation for the resuscitation of Crosskey. The careers of Frantz’s knowledge
claim and Crosskey’s knowledge claim thus intersect. Although it might be tempting to regard
the institutional developments that supported the resuscitation of Crosskey in purely positive
terms, studying the career of Frantz’s knowledge claim brings a more nuanced view. The move-
ment that brought Crosskey due recognition also worked to deny due recognition to Frantz. We
must be careful, then, about characterizing the institutional trends that bring accreditation to knowl-
edge claims that we take to be superior.
In the past several years, Frantz’s article has been increasingly noticed and praised (Post and
Siegel 2000; Brief of Petitioner Christy Brzonkala, United States v. Morrison [Nos. 99–5,
99–29] 1999). The trajectory of credibility that attaches to Frantz’s article has clearly turned in a
more positive direction, though not to the extent of Crosskey’s. How can we explain this? We
should ask the same questions as before: What is the practical impact, today, of Frantz’s claims?
Are there powerful interpretive communities that now share Frantz’s assumptions? Are there
social groups that now have an interest in his claims and are they powerful enough to be heard?
In recent years, the practical stakes have soared in the dispute over the interpretation of Waite
Court cases due to the federalism and separation-of-powers decisions of the Rehnquist Court.^36 In
restricting congressional use of the Commerce Clause to authorize civil rights measures, the
Rehnquist Court has returned state action doctrine to legal prominence, relying upon it to justify
decisions striking down federal civil rights statutes. With the return of state action doctrine to
practical significance, challenges to conventional readings of Waite Court cases, built quietly in
preceding decades (e.g., Benedict 1978), are gaining a higher profile. Social groups with an inter-
est in the Violence Against Women Act of 1994 now look to Frantz (Brief for Brzonkala). Today,
a highly reputable group of law professors supports Frantz-like readings of the Civil Rights Cases
(McConnell 1995; Post and Siegel 2000; G. Stone et al. 1996). This adds reputational weight to
Frantz’s knowledge claims, something that was absent in 1964. Today, there are also new chal-
lenges to the conventional legal historiography of Reconstruction (Labbé and Lurie 2003; M.A.
Ross 2003). The critical accomplishment of these recent challenges is to suggest that the Court’s
settlement of Reconstruction has not yet been understood. This permits Frantz’s claim, which
suggests the same thing, to appear more credible. The current generation of legal scholars, who
did not author the legal historiography of the Second Reconstruction, also has greater distance
from this legal historiography and so may increasingly see it with fresh eyes.
The story of Frantz’s knowledge claim, of course, is still in its early chapters, and it is too soon
to tell if or when it will gain wide acceptance. What is clear is that its career is inextricably tied to
the reassessment of the conventional legal history of Reconstruction. Many legal academics re-
main deeply vested in this conventional historiography, an investment that is visible in their
work, and so institutional sources of resistance to Frantz’s claim remain strong.