The Framing Of The Fourteenth Amendment

In The Second Founding: An Introduction to the Fourteenth Amendment, Ilan Wurman provides an illuminating introduction to the original meaning of the Fourteenth Amendment's famous provisions 'due process of law,' 'equal protection of the laws,' and the 'privileges' or 'immunities' of citizenship. He begins by exploring the antebellum legal meanings of these concepts, starting from Magna Carta, the Statutes of Edward III, and the Petition of Right to William Blackstone and antebellum state court cases. The book then traces how these concepts solved historical problems confronting framers of the Fourteenth Amendment, including the comity rights of free blacks, private violence and the denial of the protection of the laws, and the notorious abridgment of freedmen's rights in the Black Codes. Wurman makes a compelling case that, if the modern originalist Supreme Court interpreted the Amendment in 'the language of the law,' it would lead to surprising and desirable results today.

In a remarkably fresh and historically grounded reinterpretation of the American Constitution, William Nelson argues that the fourteenth amendment was written to affirm the general public's long-standing rhetorical commitment to the principles of equality and individual rights on the one hand, and to the principle of local self-rule on the other.

It is Berger's theory that the United States Supreme Court has embarked on "a continuing revision of the Constitution, under the guise of interpretation," thereby subverting America's democratic institutions and wreaking havoc upon Americans' social and political lives. Raoul Berger (1901-2000) was Charles Warren Senior Fellow in American Legal History, Harvard University. Please note: This title is available as an ebook for purchase on Amazon, Barnes and Noble, and iTunes.

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.

The story of the Framing of the Fourteenth Amendment is a lost story of American history, covered over by Southern inspiring myth making and an unwillingness to grapple with the central role of slavery in American history. Americans can take new inspiration from that story and use it as an example of how our popular democracy can be perfected. Even today, nearly a century and a half after the Second Founders did their work, their words and example move before us as a people, a cloud by day, a pillar of fire by night.