In his new book Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War (Kansas, 2023), Professor Mark Graber aims to restore to contemporary memory the goals of those Republican and Unionist members of Congress who drafted the Fourteenth Amendment during Reconstruction. In particular, he argues, Republicans emphasized sections 2, 3, and 4, which they believed would prevent “rebel rule” by ensuring loyal majorities in both the national and state governments. They were far less concerned with the individual rights in Section 1, that have occupied Americans for more than a century.
This line of inquiry breathes new life into the more obscure sections of the Fourteenth Amendment, offering remarkable modern applications. “Whether former President Trump is eligible for the presidency depends on Section 3,” said Graber, referring to the Jan. 6 insurrection and the ineligibility for office of those who, according to Section 3, have “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” “Voting rights advocates,” he added, “are taking a new look at Section 2,” which changed the way representatives with the House of Representatives and Electoral College were allocated.
"Mark Graber has opened our eyes not only to a lost history of the Fourteenth Amendment, but also to its Framers’ central purpose,” wrote Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, in a review of the book. “They sought to create the conditions for a democratic politics that would protect and empower people, both Black and white, who had remained loyal to the Union during the Civil War. This brilliant book, part of a projected multi-volume series, teaches that the way we shape our political institutions is every bit as important as abstract guarantees of constitutional rights."
Organizer of Maryland Carey Law’s legendary Constitutional Law Schmooze, which attracts scholars from around the world, Graber likes nothing more than when his scholarship sparks meaningful conversations. He will have plenty of opportunities to chew over this book with colleagues starting with the 119th annual meeting of the American Political Science Association (APSA) in Los Angeles during Labor Day weekend. There, Graber will participate in an “author-meets-readers" roundtable discussion. He will also receive a lifetime achievement award from APSA’s Law and Courts Section at the conference.
Additionally, Graber is scheduled to present talks throughout the academic year at institutions around the country, including Princeton University, Bucknell University, University of Wisconsin, University of Georgia, and Tulane University.
Graber, who joined the Maryland Carey Law faculty in 2002, is recognized as one of the leading scholars in the country on constitutional law and politics and considered the founder of the American Constitutional Development movement, which analyzes constitutional doctrine combining tools from the disciplines of law, history, government, and American politics. From his early work challenging the rooted model of the counter-majoritarian problem in constitutional courts, to Punish Treason, Reward Loyalty, Graber has been on the leading edge of consciousness shifting in the constitutional law world for the past four decades.
He is the author of A New Introduction to American Constitutionalism (Oxford 2013), Dred Scott and the Problem of Constitutional Evil (Cambridge, 2006), and co-editor (with Keith Whittington and Howard Gillman) of American Constitutionalism: Structures and Powers and American Constitutionalism: Rights and Powers, both also from Oxford University Press, and co-editor with Mark Tushnet and Sandy Levinson of Constitutional Democracy in Crisis (Oxford 2018).
Graber is also the author of over 100 articles, including "The Non-Majoritarian Problem: Legislative Deference to the Judiciary" in Studies in American Political Development, "Naked Land Transfers and American Constitutional Development," in the Vanderbilt Law Review and "Resolving Political Questions into Judicial Questions: Tocqueville’s Aphorism Revisited," in Constitutional Commentary.
With a bachelor’s degree in philosophy from Dartmouth College, a Ph.D. in political science from Yale University, and a JD from Columbia Law, Graber joined the faculty after teaching in the Department of Government and Politics at the University of Maryland, College Park, for over 10 years. He has also been a visiting faculty member at Harvard University, Yale University, the University of Virginia, the University of Pennsylvania, the University of Toronto, the University of Oregon, and Simon Reichman University.
In 2016, Graber was named Regents Professor, the most prestigious University System of Maryland (USM) rank. The seventh Regents Professor in USM history, Graber is the only professor on the University of Maryland, Baltimore, campus to hold the title.