The Original Meaning of the Fourteenth Amendment

Its Letter and Spirit

Randy E. Barnett, Evan D. Bernick, James Oakes

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English

Harvard Uni.Press Academi
02 November 2021

History; History of the Americas; Political science & theory; Legal history; Constitutional & administrative law

A renowned constitutional scholar and a rising star provide a balanced and definitive analysis of the origins and original meaning of the Fourteenth Amendment.

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, according to Randy Barnett and Evan Bernick, the Supreme Court has long misunderstood or ignored the original meaning of the amendment's key clauses, covering the privileges and immunities of citizenship, due process of law, and the equal protection of the laws.

Barnett and Bernick contend that the Fourteenth Amendment was the culmination of decades of debates about the meaning of the antebellum Constitution. Antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence, and the common law. They also utilized what is today called public-meaning originalism. Although their arguments lost in the courts, the Republican Party was formed to advance an antislavery political agenda, eventually bringing about abolition. Then, when abolition alone proved insufficient to thwart Southern repression and provide for civil equality, the Fourteenth Amendment was enacted. It went beyond abolition to enshrine in the Constitution the concept of Republican citizenship and granted Congress power to protect fundamental rights and ensure equality before the law. Finally, Congress used its powers to pass Reconstruction-era civil rights laws that tell us much about the original scope of the amendment.

With evenhanded attention to primary sources, The Original Meaning of the Fourteenth Amendment shows how the principles of the Declaration eventually came to modify the Constitution and proposes workable doctrines for implementing the key provisions of Section 1 of the Fourteenth Amendment.

By: Randy E. Barnett, Evan D. Bernick
Foreword by: James Oakes
Imprint: Harvard Uni.Press Academi
Country of Publication: United States
Dimensions: Height: 235mm, Width: 156mm,
ISBN: 9780674257764
ISBN 10: 0674257766
Pages: 488
Publication Date: 02 November 2021
Audience: Professional and scholarly , Undergraduate
Format: Hardback
Publisher's Status: Active

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.

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

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, 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 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 Randy Barnett and Evan Bernick have produced an outstanding account of the original public meaning of the Fourteenth Amendment's most important provisions. Comprehensive and clear, methodical and elegantly written, their 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