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The Original Meaning of the Fourteenth Amendment
Its Letter and Spirit
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Preface by:
Language:
English
Published/Copyright:
2021
About this book
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.
Reviews
The book’s impressive array of historical materials makes an important contribution to our understanding of the 14th Amendment.
-- Raymond Kethledge Wall Street Journal
-- Raymond Kethledge Wall Street Journal
By any standard an important contribution to the ongoing discussion of the subject…[A] must-read.
-- Earl M. Maltz National Review
-- Earl M. Maltz National Review
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.
-- Ilya Somin Volokh Conspiracy
-- Ilya Somin Volokh Conspiracy
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
-- 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., author of Law and Legitimacy in the Supreme Court
-- Richard H. Fallon Jr., author of Law and Legitimacy in the Supreme Court
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, author of The Living Presidency
-- Saikrishna Bangalore Prakash, author of The Living Presidency
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, author of Framed: America’s 51 Constitutions and the Crisis of Governance
-- Sanford V. Levinson, author of Framed: America’s 51 Constitutions and the Crisis of Governance
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, Yale Law School
-- Jack M. Balkin, Yale Law School
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, author of Rethinking the Judicial Settlement of Reconstruction
-- Pamela Brandwein, author of Rethinking the Judicial Settlement of Reconstruction
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, author of No Property in Man
-- Sean Wilentz, author of No Property in Man
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.
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Topics
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Frontmatter
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Contents
vii -
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Foreword
ix -
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Preface: The Letter
xiii -
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Introduction: The Letter and Spirit of the Fourteenth Amendment
1 - Part I: The Privileges or Immunities of Citizenship Clause
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1. The Early Origins of Privileges or Immunities
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2. The Antislavery Origins of “Privileges or Immunities”
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3. The Antislavery Origins of Republican Citizenship
89 -
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4. Reconstructing National Citizenship
109 -
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5. The Letter: Writing and Ratifying the Privileges or Immunities Clause
128 -
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6. Enforcing Citizenship
156 -
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7. Competing Originalist Interpretations
205 -
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8. The Spirit: Implementing the Privileges or Immunities Clause
227 - Part II: The Due Process of Law Clause
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9. The Letter: The Original Meaning of “Due Process of Law”
261 -
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10. The Spirit: Implementing the Due Process of Law Clause
289 -
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11. The Proper Ends of Legislative Power
299 - Part III: The Equal Protection of the Laws Clause
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12. The Letter: The “Equal Protection of the Laws”
319 -
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13. The Spirit: Implementing the Equal Protection of the Laws
351 -
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Conclusion: The Fourteenth Amendment in Full
373 -
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Notes
385 -
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Acknowledgments
455 -
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Index
459
Publishing information
Pages and Images/Illustrations in book
eBook published on:
October 20, 2021
eBook ISBN:
9780674270121
Pages and Images/Illustrations in book
eBook ISBN:
9780674270121
