Fourteenth Amendment Originalism

35 Pages Posted: 25 May 2012 Last revised: 24 Jul 2012

Jamal Greene

Columbia University - Law School

Date Written: May 24, 2012

Abstract

This essay, part of a symposium on Jack Balkin's Constitutional Redemption and Sanford Levinson's Constitutional Faith, seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions of incorporated rights, in affirmative action cases, and in federalism disputes, and yet originalist interventions into such discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent less usable history than the Founding for several reasons: the Reconstruction amendments were largely failures in their own time; the open-ended language of the Fourteenth Amendment is not well-suited to settlement of modern controversies; and the Reconstruction era holds an awkward and contested place within our national memory. These limitations are consistent with the notion that originalism in practice is as much an ethical as a hermeneutic project.

Keywords: originalism, Fourteenth Amendment, living constitutionalism, Reconstruction

Suggested Citation

Greene, Jamal, Fourteenth Amendment Originalism (May 24, 2012). Maryland Law Review, Forthcoming; Columbia Public Law Research Paper No. 12-311. Available at SSRN: https://ssrn.com/abstract=2066185

Jamal Greene (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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