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The Second Founding: An Introduction to the Fourteenth Amendment
In The Second 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.
170 pages, Hardcover
Published November 12, 2020
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Displaying 1 - 3 of 3 reviews
September 23, 2021
A clear, succinct explanation of one of the most important parts of the constitution. The book does a nice job of explaining the historical context and also giving implications for modern debates. It also helps makes sense of very complex legal topics.
August 5, 2022
Rather good, sensical look at three of the main provisions of section 1 of the 14th amendment to the US Constitution: the privileges and immunities clause, due process, and equal protection. Wurman looks at what these elements meant in the post-Civil War period and just exactly what Congress was seeking to do when it passed the amendment and sent it to the states.
Once you do that, the clauses' meanings are actually relatively straightforward (in other words, once you strip away the 150 years of gunk and grime). The privileges and immunities clause means that a state cannot deny to other Americans the non-political privileges and immunities it grants its own residents. The due process actually has to do with due process. (Imagine that! No substantive due process, an oxymoron, in sight.) That is to say, if a state is going to strip a citizen of his natural rights (life, liberty, property), it can only do so through a fair, open, predetermined process. And the equal protection clause means that non-state actors cannot deprive anyone in the state of said rights. That clause really is about protection. Neither of these latter two clauses have anything to do with inventing new "rights" that were not already present.
After this historical spadework Wurman applies his findings to cases of recent and less recent vintage. Some were wrongly decided; others weren't. Still others were plausible but perhaps not ideal. I won't quibble here even if I don't think he always applied his own findings most rigorously. In any case, very important insight here that ought to be disseminated much more widely.
Once you do that, the clauses' meanings are actually relatively straightforward (in other words, once you strip away the 150 years of gunk and grime). The privileges and immunities clause means that a state cannot deny to other Americans the non-political privileges and immunities it grants its own residents. The due process actually has to do with due process. (Imagine that! No substantive due process, an oxymoron, in sight.) That is to say, if a state is going to strip a citizen of his natural rights (life, liberty, property), it can only do so through a fair, open, predetermined process. And the equal protection clause means that non-state actors cannot deprive anyone in the state of said rights. That clause really is about protection. Neither of these latter two clauses have anything to do with inventing new "rights" that were not already present.
After this historical spadework Wurman applies his findings to cases of recent and less recent vintage. Some were wrongly decided; others weren't. Still others were plausible but perhaps not ideal. I won't quibble here even if I don't think he always applied his own findings most rigorously. In any case, very important insight here that ought to be disseminated much more widely.
May 17, 2022
Nice, concise interpretation of the Reconstruction Amendments, from an originalist perspective.
Displaying 1 - 3 of 3 reviews