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The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit by [Randy E. Barnett, Evan D. Bernick, James Oakes]

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Randy E. Barnett

Evan D. Bernick

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

by Randy E. Barnett (Author), Evan D. Bernick (Author), James Oakes (Foreword) Format: Kindle Edition

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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.

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474 pages
Language

English
Publisher

Harvard University Press
Publication date

2 November 2021
File size

2791 KB
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By any standard an important contribution to the ongoing discussion of the subject...[A] must-read.--Earl M. Maltz "National Review" (2/21/2022 12:00:00 AM)

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" (12/30/2021 12:00:00 AM)

The book's impressive array of historical materials makes an important contribution to our understanding of the 14th Amendment.--Raymond Kethledge "Wall Street Journal" (11/30/2021 12:00:00 AM)

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" (11/26/2021 12:00:00 AM)

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

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

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

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

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

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 --This text refers to the hardcover edition.

About the Author

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. --This text refers to the hardcover edition.

Product details

ASIN ‏ : ‎ B097RZYPSR
Publisher ‏ : ‎ Harvard University Press (2 November 2021)
Language ‏ : ‎ English
File size ‏ : ‎ 2791 KB
Text-to-Speech ‏ : ‎ Enabled
Screen Reader ‏ : ‎ Supported
Enhanced typesetting ‏ : ‎ Enabled
X-Ray ‏ : ‎ Enabled
Word Wise ‏ : ‎ Enabled
Print length ‏ : ‎ 474 pages
Page numbers source ISBN ‏ : ‎ 0674257766

Best Sellers Rank: 602,559 in Kindle Store (See Top 100 in Kindle Store)
- 98 in Legal History (Kindle Store)
- 264 in Legal History (Books)
- 272 in United States Politics

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Randy E. Barnett
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Randy E. Barnett is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center, where he teaches constitutional law and contracts, and is the Faculty Director of the Georgetown Center for the Constitution. After graduating from Northwestern University and Harvard Law School, he tried many felony cases as a prosecutor in the Cook County States’ Attorney’s Office in Chicago. A recipient of a Guggenheim Fellowship in Constitutional Studies, Professor Barnett has been a visiting professor at Penn, Northwestern and Harvard Law School.
Professor Barnett’s publications includes twelve books, more than one hundred articles and reviews, as well as numerous op-eds. In 2004, he argued the medical marijuana case of Gonzalez v. Raich before the U.S. Supreme Court. In 2012, he was one of the lawyers representing the National Federation of Independent Business in its constitutional challenge to the Affordable Care Act. Recently, he appeared on PBS’s Constitution USA with Peter Sagal; and he portrayed a prosecutor in the 2010 science-fiction feature film, InAlienable.
He is addicted to Amazon Prime.
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Evan D. Bernick
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Evan Bernick is an Assistant Professor of Law at the Northern Illinois University College of Law. He teaches courses in constitutional law, criminal law, criminal procedure, administrative law and legislation.
From 2020 to 2021, Professor Bernick was a visiting professor at the Georgetown University Law Center and the executive director of the Georgetown Center for the Constitution. Before that, he served as a clerk to Judge Diane S. Sykes of the United States Court of Appeals for the Seventh Circuit. From April 2017 to April 2019, he was a visiting lecturer at Georgetown and a resident fellow of the Center for the Constitution.
His scholarship covers a range of topics, from constitutional law, to philosophy of law, to social movements, to law enforcement. He has published with the Georgetown Law Journal, the Notre Dame Law Review, the William and Mary Law Review and the George Mason Law Review, among other journals. His book, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021), with Randy E. Barnett, was published by Harvard University Press under its Belknap imprint "for books of long-lasting importance, superior in scholarship and physical production, chosen whether or not they might be profitable."
Professor Bernick received his bachelor's degree in 2008 from the University of Chicago, where he studied philosophy and graduated with honors. He received his juris doctorate in 2011 from the University of Chicago Law School.
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Allan Marinelli

Great book for those that want to be enlightened

Reviewed in Canada on 6 November 2021

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Great book for those that want to be enlightened about the understanding of the fulcrum pertaining to the interpretation of the 14 amendment of the United States Constitution from an educational standpoint rather than assuming x, y, z based on what one allegedly hears from other non-objective sources to deceive the laymen.
Non-Objective Sources can be defined as
(1) No educational standard/No objective criteria of not analysing the pros and cons of the premises attested in the original intent of the 14 amendment or other sources that augment misinformation to falsely cause a false corollary.

Peter C

A very timely book

Reviewed in the United States on 27 November 2021

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I like the idea of originalism. This book gives a layman a better understanding of why. I found that certain book references are worth reviewing. A genuinely worthwhile read.

8 people found this helpful

Scott Shine

Challenging but important for every US citizen to read.

Reviewed in the United States on 1 August 2022

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The book merits five stars for its transformational effect, not for ease of reading. This is college-level material, full of abstract ideas and hair-splitting distinctions that may force you, as it did me, to take copious notes and to frequently pause and reflect. Randy Barnett and Evan Bernick seek to rehabilitate originalism, arguing persuasively that the Supreme Court has long misinterpreted three key clauses of the 14th Amendment – the Privileges or Immunities Clause, the Due Process of Law Clause, and the Equal Protection of Law Clause. In some ways, courts have interpreted clauses too conservatively and in other ways too liberally, they say. If the authors have accomplished nothing else with this thoroughly researched, closely reasoned, and logically organized book, they have provided effective tools for rethinking the crucial 14th Amendment and the Constitution as a whole.

Starting with the Privileges or Immunities Clause, the authors assess that it originally encompassed a more expansive, and expandable, set of rights than the severely restricted list the Supreme Court discerned within just five years of the amendment’s 1868 passage. The authors cite numerous speeches and articles to identify four categories of fundamental civil rights identified by the drafters and the public. (1) They include those rights already enumerated throughout the Constitution as it stood in 1868, (2) those rights enumerated in the 1866 Civil Rights Act, (3) those rights unenumerated but deeply rooted in the nation’s history and traditions, and (4) any right that might get added to the Constitution in future years (pages 238-39). The last category is what makes the list expandable.
Likewise, the authors take issue with the Supreme Court‘s use of the Due Process of Law Clause. While they criticize the modern conception of “’substantive due process,’ which authorizes judges to single out some liberties as fundamental and worthy of heightened protection and leave aside other mere ‘liberty interests’ (32),” they nevertheless see a substantive element in the clause. They argue that the clause requires the Supreme Court to determine if the substance of the legislative act falls within the proper scope of legislative power. So, the difference between the two types of substantive due process, as I understood it, is that the incorrect one amounts to identifying or manufacturing rights and the correct one involves assessing the proper limits of legislative power, though both can achieve similar ends.
The authors also see flaws in modern interpretations of the amendment’s Equal Protection of the Laws Clause. Contrary to prevailing doctrine, they assert that equal protection “imposes an affirmative duty on state governments to act (34),” even with respect to rights violations committed by private actors. Real protection requires “effective enforcement (335)” on behalf of all. They note, however, that the framers did not intend the clause “to encode a general antidiscrimination principle (342),” even though frustrated pro-Reconstruction commentators tried to stretch its purpose in that direction after the Supreme Court gutted the Privileges or Immunities Clause.
The authors deftly deploy several tools of Constitutional analysis, including some useful conceptual distinctions. To name a few, they distinguish original intended meaning from original public meaning, Constitutional interpretation (identifying original meaning) from construction (applying interpretations to a specific case), and the letter of the amendment (original conveyed meaning) from its spirit (the ends, purposes, goals, and objects of the amendment). They also advocate a three-step process for interpreting the Constitution and constructing meaning. Justices should (1) make a good faith effort to determine original meaning; (2) failing that, identify original, publicly accessible functions or spirit of the provision; and (3) formulate a rule consistent with the letter of the amendment and designed to implement the amendment’s original public functions (17-18).
Finally, you might want to supplement this dry and scholarly treatise with historical narratives that lay bare the human costs of the Supreme Court’s decision to cripple the 14th Amendment in the 1870s. Many good books are probably available, but from personal experience I can recommend Charles Lane’s compelling and at times upsetting "The Day Freedom Died."

Tom

Learn history and about 14th ammendment

Reviewed in the United States on 28 January 2022

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Easy to read, provides The Who, what, when, where and how the 14th Amendment enhanced the Constitution

One person found this helpful

John

Another stellar contribution by Barnett

Reviewed in the United States on 4 November 2021

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As always, Barnett delivers an outstanding contribution to the body of work that is Constitutional Law.

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