The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit

by Randy E. Barnett, Evan D. Bernick, James Oakes (Foreword by)

Overview

A Federalist Notable Book

“An important contribution to our understanding of the 14th Amendment.”
—Wall Street Journal

“By any standard an important contribution…A must-read.”
—National Review

“The most detailed legal history to date of the constitutional amendment that changed American law more than any before or since…The corpus of legal scholarship is richer for it.”
—Washington Examiner

Adopted in 1868, the Fourteenth Amendment profoundly changed the Constitution, giving the federal judiciary and Congress new powers to protect the fundamental rights of individuals from being violated by the states. Yet, the Supreme Court has long misunderstood or ignored the original meaning of its key Section I clauses.

Barnett and Bernick contend that the Fourteenth Amendment must be understood as the culmination of decades of debate about the meaning of the antebellum Constitution. In the course of this debate, antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence, and the common law, as well as what is today called public-meaning originalism.

The authors show how these arguments and the principles of the Declaration in particular eventually came to modify the Constitution. They also propose workable doctrines for implementing the amendment’s key provisions covering the privileges and immunities of citizenship, due process, and equal protection under the law.

Product Details

ISBN-13:	9780674295537
Publisher:	Harvard University Press
Publication date:	04/01/2024
Pages:	488
Sales rank:	879,521
Product dimensions:	6.12(w) x 9.25(h) x 1.30(d)

About the Author

Randy E. Barnett is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center. A Guggenheim Fellow and Supreme Court advocate, he is the author of The Structure of Liberty, Restoring the Lost Constitution, and Our Republican Constitution.

Evan D. Bernick is Assistant Professor of Law at Northern Illinois University College of Law. He was previously Visiting Professor of Law at Georgetown University Law Center. His scholarship appears in the Georgetown Law Journal, Notre Dame Law Review, and William & Mary Law Review.

Table of Contents

Foreword James Oakes ix

Preface: The Letter xiii

Introduction: The Letter and Spirit of the Fourteenth Amendment 1

Part I The Privileges or Immunities of Citizenship Clause

1 The Early Origins of Privileges or Immunities 41

2 The Antislavery Origins of "Privileges or Immunities" 61

3 The Antislavery Origins of Republican Citizenship 89

4 Reconstructing National Citizenship 109

5 The Letter: Writing and Ratifying the Privileges or Immunities Clause 128

6 Enforcing Citizenship 156

7 Competing Originalist Interpretations 205

8 The Spirit: Implementing the Privileges or Immunities Clause 227

Part II The Due Process of Law Clause

9 The Letter: The Original Meaning of "Due Process of Law" 261

10 The Spirit: Implementing the Due Process of Law Clause 289

11 The Proper Ends of Legislative Power 299

Part III The Equal Protection of the Laws Clause

12 The Letter: The "Equal Protection of the Laws" 319

13 The Spirit: Implementing the Equal Protection of the Laws 351

Conclusion: The Fourteenth Amendment in Full 373

Notes 385

Acknowledgments 455

Index 459

Editorial Reviews

The book’s impressive array of historical materials makes an important contribution to our understanding of the 14th Amendment.

Wall Street Journal - Raymond Kethledge

The most detailed legal history to date of the constitutional amendment that changed American law more than any before or since…The corpus of legal scholarship is richer for it.

Washington Examiner

As complete an account of the intellectual and political origins of the Fourteenth Amendment as one could hope for. As a work of history, it bristles with surprises. As a contribution to constitutional theory, it poses challenging new questions for both originalists and nonoriginalists.

Richard H. Fallon Jr.

A major contribution to our understanding of what many consider the single most important amendment to the Constitution. It may well reshape our understanding of the Fourteenth Amendment.

Volokh Conspiracy - Ilya Somin

Offer[s] a theory of interpretation that draws upon the public historical meaning of the amendment—a theory that challenges the incorrect paths the Supreme Court has taken…The strength of their argument is to correct misinterpretations of the amendment and show how it was meant to protect a cluster of rights for freed slaves that were long assumed to exist generally for all citizens.

Choice

The Fourteenth Amendment, by far the longest of the momentous Reconstruction Amendments, is a landmark in the continuing struggle for racial equality in America, but its importance hardly ends there. Its political as well as legal origins, meanwhile, carry profound significance for the history of race, citizenship, the US Constitution, and much more. In this breakthrough book, Barnett and Bernick brilliantly explore the amendment's origins while grappling with its original meaning, in ways that will command attention from historians as well as legal scholars and constitutional lawyers.

Sean Wilentz

Antislavery constitutionalism meets modern originalism in this sweeping reading of the original public meaning of the Fourteenth Amendment. Engaging for critics and adherents of originalism alike, this inventive fusion of history and constitutional theory catapults Republican antislavery to the forefront of today’s rights disputes.

Pamela Brandwein

Provides fresh and interesting—and sometimes surprising—arguments about how best to interpret the Fourteenth Amendment. A major theme of the book is that both liberal and conservative judges have been significantly mistaken in their interpretations of the amendment. This book is designed to set them straight and to provide guidance for new and better interpretations. A truly excellent and challenging analysis of the historical record.

Sanford V. Levinson

An outstanding account of the original public meaning of the Fourteenth Amendment’s most important provisions. Comprehensive and clear, methodical and elegantly written, this work shines new light on the meaning and spirit of the Reconstruction Framers’ work. Anyone who wants to understand the Fourteenth Amendment—one of the great achievements of American constitutionalism—should consult this book.

Jack M. Balkin

Evincing the highest academic values of openness, integrity, and truth-seeking, this book reflects a systematic and even-handed consideration of the origins and original meaning of the Fourteenth Amendment, one of the most vital subjects in constitutional law. The definitive treatment of the subject for years and decades to come.

Saikrishna Bangalore Prakash

By any standard an important contribution to the ongoing discussion of the subject…[A] must-read.

National Review - Earl M. Maltz

A deep dive into the ‘original meaning’ of the most far-reaching of [the] amendments.

Washington Examiner - Quin Hillyer

This book provides as complete an account of the intellectual and political origins of the Fourteenth Amendment as one could hope for. As a work of history, it bristles with surprises. As a contribution to constitutional theory, it poses challenging new questions for both originalists and nonoriginalists.

Richard H. Fallon