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

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

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.

Genres: Law, History, Politics, Nonfiction, Legal

488 pages, Hardcover

Published November 2, 2021

Reviews

[Bill Tyroler · Rating 5 out of 5]

Superlative, if likely a difficult slog for the casual reader. The authors aim to fundamentally change the way the judiciary construes the 14th amendment, and that's their audience -- the Supreme Court. The result is a technical analysis that often assumes familiarity with legal concepts and case law. Highly rewarding even for the lay reader, albeit with some effort.

As the authors say, most all of the "conventional wisdom about the meaning of the most salient clauses of the ... Amendment is wrong." They aim to make things right by reorienting analysis from the Due Process and Equal Protection Clauses to the Privileges and Immunities Clause. That's a tough row to hoe, not least because the last would have to be reanimated, having been eviscerated by the Supreme Court almost 150 years ago, in the aptly named Slaughter-House Cases. So I'd be reluctant to bet on the stated goal being realized. But if success is defined as impressive scholarship and persuasive argument, then the authors have certainly satisfied that definition.

[Jamie Bronstein · Rating 2 out of 5]

this book was way too long and incredibly repetitions, and it had the distinction of making an argument that did not convince me. As other reviewers have pointed out, substantive due process rights tend to me important if you are a woman, a religious minority, a racial/ethnic minority, a gay person . . . and the two scholars who wrote this are libertarians with no understanding of that fact.

[tom · Rating 3 out of 5]

Holy shit this is the first book I have finished in a good month no wonder I am before on my goal. Anyway.

I first learned about originalism on Halloween night 2021, I watched a PhilosophyTube video on Amy Coney Barett and thought, "That is not the best but I have heard worse I guess?". Jokes on me, I have now become obsessed with the law and the history of it, only to realize that I think originalism is the single dumbest thing to ever happen to the current state of jurisprudence. For those who do not know, originalism is the view that the Constitution should be interpreted based on how the original framers and subsequent amendments were first interpreted and conceived. It's become more well-known as the default ideology of the conservative bloc of the court (Alito, Thomas, Kavanaugh, Goursch, and Barrett). It has been used to deflect the right-to-privacy argument established by the Brandeis Brief and Roe v. Wade.

I've been on a bit of a civil war kick and although the process for Republican Dad Mitosis has not yet occurred, I have been looking for more legal histories of the era. When I saw this was free on Audible and was used in the IPLE room, I thought I should check it out. For the first time, I think I understand why originalism is so big. I wouldn't say I like it at all but the arguments put forth made more sense than I realized. A lot of this came down to the semantics of the phrases outlined such as "due process" or "protection".

I appreciate that the authors do not hide any bias cause I sorta hate when authors do that, really depending on the topic they always fall to some degree. But that is about it. The book is probably more informative if you are an originalist but as someone who is not and going to a school with -- I assume -- not many originalists, I do not fully get why I am reading this after the last 3 weeks. I mean, I enjoyed most of it, it was interesting. But I cannot lie when I say I doubt many of these outside the broader ideas, some cases such as Castle Rock or DeShaney will last in the mind. It is a nice intro to understanding originalism and I think I get it more but I do not agree by any means.

Also, fuck the Federalist Society. Me and all my homies HATE the Federalist Society.

[Will Belvin · Rating 5 out of 5]

Fantastic dive into the 14th Amendment and it’s incorrect application through the Courts. Definitely a difficult read for the casual reader. This book seems to be directed towards the Federal judiciary, their clerks, and other legal scholars. It also provides a good critique of the current iteration of constitutional originalism. Definitely worth the read, very on point given our current legal and cultural debates over rights and liberties.

[Scott Osborne · Rating 5 out of 5]

This is a very timely book addressing a subject of great current interest – the proper interpretation of the Fourteenth Amendment, which is essential to the enforcement of so many liberties enjoyed by citizens of the United States. The authors, two constitutional law professors, have exhaustively researched the subject. The book is as much history as it is an analysis of the proper interpretation of the concepts of privileges or immunities, due process of law and equal protection of the laws.

The authors espouse an originalist approach to the interpretation of the Constitution but have substantial analytical differences with the originalist interpretations espoused by current justices of the Supreme Court. They make a persuasive case that originalism as embraced by the current justices may lead to a loss of legal and moral authority of the Court. That said, the authors do not call for a radical departure from existing constitutional law, but rather a refinement necessary to promote the spirit of individual freedom and government responsibility to promote the enjoyment of equal rights by all citizens.

The book is not an easy read. At times, the prose can be almost impenetrable, filled with concepts which may be familiar to constitutional scholars but are extremely difficult to understand by everyone else. I am a lawyer, and I found a lot of the discussion to be very difficult to understand, requiring re-reading and the need to constantly refer to prior discussions in the book to understand the material. At times, I had the feeling the intended audience for the book were the clerks of the Supreme Court justices rather than the general public. While I am not in favor of dumbing down a subject, I thought how much more readable and persuasive the book could have been had the authors turned to someone like Michael Lewis to get a few ideas on how to make an obscure, complex topic immediately appealing to readers with all degrees of prior knowledge of the subject.

In one respect, the book is inspiring in its recounting of the debates and theories giving rise to the Fourteenth Amendment and the goals of the drafters to achieve the promise of individual freedom and equality recited in the Declaration of Independence and embodied in the Constitution as originally adopted. After fighting a bitter civil war, the Fourteenth Amendment attempted to not only correct the original sin of slavey accepted by the Constitution but also enhance the rights of all citizens to be free of discrimination at the hands of oppressive state authorities.

This inspiration is blunted by the discussion of the interpretation of the Fourteen Amendment since its adoption in 1868. This book is a recitation of constantly shifting theories of interpretation by the Supreme Court resulting in a denial of the promise of the Amendment and the perpetuation of a statist and reactionary legal environment and a society actively discriminating among its citizens on the basis of race, gender, ethnicity, and social status. The inability of the court to articulate and consistently apply a theory of interpretation of the Constitution raises a legitimate question as to whether the Supreme Court is the appropriate vehicle for resolution of constitutional issues. The Amendment is more than 150 years old, and one would have thought a competent interpretative body would have long ago come to a resolution of the Amendment’s meaning. The shifting theories and interpretations reinforce the conclusion the decisions are result oriented and are the product of the personal beliefs and biases of the individual justices at any given time rather than a rigorous and consistent application of legal principles. This is an unintended message of the book, but nevertheless detracts from its overall message of constitutional optimism.

[Paul Gibson · Rating 4 out of 5]

I finished this book a while ago and am finally up to writing a review. I argued with this book from the beginning and yet, in the end, I lost most my arguments except for my most practical arguments. This is a difficult book. Its audience is Supreme Court justices so read it only if you’re dedicated to the subject. The book provides an evidence based method to regard the Fourteenth Amendment from an originalist perspective. It takes to task court rulings since just after the amendment was passed up to today. I agree with their arguments and reasoning. But reason has seldom been the strong suit when it comes to many justices. Ideology is at fault here. We’re still fighting the Civil War when it comes to the reconstruction amendments. The war was fought for reasons other than succession and attack upon the Union. The original constitution had to be passed without resolving the country’s originals sin of slavery. More broadly the original constitution enshrined unequal rights and unequal justice. The 13, 14, 15th amendments sought to eliminate the sin from law yet many of us are still fighting against equal justice when we wrongly insist upon “state’s rights”. They don’t seem to want freedom FOR equal rights and equal justice, they seem to want freedom FROM the federal government while fighting for some sort of secession.
In the book’s conclusion, the authors remind us that, “. . . we might be induced to adjust our normative priors when they are undercut by an interpretive methodology we think is sound.” We don’t have to abide by any particular moral theory beyond equal tights and justice for all. We also don’t want to place undue belief in idealism. The authors should keep this in mind when on page 357, 358, at least one of the authors speaks of how, in the late 1800’s and early 1900’s, fraternal societies provided millions with social welfare benefits. The implication is this would work today. I will bet that there were also millions that were not helped. The authors are much better at realism than idealism. After all, as a practical matter, the Supreme Court suffers from idealism that blinds them to equal rights and justice under the law. We have a court full of ideological appointees who I’m sure call themselves originalists but seem to prefer belief to reality. Trying to reeducate true believers seems impossible rather than unlikely.

[Tim Callicutt · Rating 5 out of 5]

A pretty enlightening read, despite its density and propensity for repetition. From a history teacher’s perspective, the most valuable part was the authors’ exploration of the concept of republican citizenship throughout the ante- and postbellum periods. In terms of general interest, the authors’ discussion of originalism made me revisit it as an interpretative philosophy. The idea of original public meaning and their subsequent careful reconstruction of that meaning for the Fourteenth Amendment showed that there’s a place for originalism across the political spectrum - not just for conservative jurisprudence. The most extensive discussion is around the privileges and immunities clause, mostly because they seek to redeem and recenter it within judicial reasoning after its sidelining due to the Slaughterhouse and Cruikshank cases.

Despite how impressed I was with the book and its line of reasoning, there were a number of questions that lingered. Being published in 2023, the authors hand wave away any in-depth discussion about birthright citizenship - arguing that it has more or less had a consistent interpretation since its inception. Hopefully that remains true, but I wonder if that will change as more people argue for a reinterpretation. At this point, it’s more a political than judicial issue, but we’ll see if that remains true. I also wonder how many devoted originalists would agree with their assertion that the accepted public meaning of the privileges and immunities clause put a floor, but not a ceiling, on what rights were envisioned as pertaining to citizenship. The authors offer some support for their view based on the structure of Republican arguments around the amendment, but there’s no smoking gun where anybody connected to the amendment stated that it was meant to be open-ended. I personally like the authors’ approach here, but question how “originalist” it really is. Also, it’s hard to see this book actually helping with the current crisis of legitimacy facing federal courts, as the authors argue. I could see these changes affecting the esteem with which scholars, lawyers, and even some educated pols hold the court - but the dissatisfaction of the public has a lot more to do with politics than doctrine.

[Melissa]

Ny times column

[Ashley Good · Rating 4 out of 5]

Read something outside my norm and it made me challenge my assumptions about originalism - like the findings here would support a number of liberal wins