Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment
Randy E. Barnett
Georgetown University Law Center
February 22, 2010
Georgetown Public Law Research Paper No. 10-06
The Journal of Legal Analysis, Vol. 3, 2011
The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Despite a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, in the 1970s and 1980s abolitionist constitutionalism remains obscure to law professors and even to historians of abolitionism.
This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North, many of whom were instrumental in the formation of the Liberty, Free Soil, and Republican parties. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.
The more one reads the forgotten writings of these “constitutional abolitionists,” the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came.
The Fourteenth Amendment is universally presumed to be the outcome of the organized antislavery movement in the United States, yet its modern history continues to be written without reference to the abolitionists. Judges and historians seek an understanding of phrases admittedly designed to secure the ‘‘freedom of the slave race’’ without first examining the tenets of the group which fought longest and hardest to establish that freedom.
Number of Pages in PDF File: 101
Keywords: Fourteenth Amendment, originalism, abolitionism, abolitionist constitutionalism, slavery, constitution, privileges or immunities, due process, equal protection, citizenship, tenBroek,Weicek, William Nelson, Robert Cover
JEL Classification: K10, K19, K20
Date posted: January 20, 2010 ; Last revised: October 28, 2015