Teaching the Forgotten Fourteenth Amendment and the Constitution of Memory

23 Pages Posted: 8 Mar 2018

See all articles by Mark Graber

Mark Graber

University of Maryland - Francis King Carey School of Law

Date Written: March 7, 2018

Abstract

This brief essay explores why professors might teach Sections 2 and Sections 3 of the Fourteenth Amendment, or what I call the forgotten Fourteenth Amendment. Some reasons are obvious. Professors who take a historical approach to constitutional pedagogy should teach the correct history of the Fourteenth Amendment. Sections 2 and 3 were far more important to Republicans than what they thought was the trivial Section 1. Some reasons are rooted in traditional legal pedagogy. Several scholars provide good reasons why the forgotten Fourteenth Amendment should again become part of the litigated constitution, the subject of most constitutional law classes. The forgotten Fourteenth Amendment is an excellent vehicle for teaching students the difference between originalism as practiced by historians and originalism as practiced by advocates. Still other reasons focus on questions of constitutional authority. By teaching the Constitution of Memory, professors may contrast the twentieth-century commitment to judicial supremacy with the nineteenth-century commitment to partisan supremacy. Students who understand that how the Constitution works today is not how the Constitution worked in the past, are prepared to explore how contemporary constitutional politics may resurrect older approaches to constitutional authority or generate new means for settling constitutional controversies.

Keywords: legal pedagogy, originalism, judicial supremacy, partisan supremacy, Reconstruction Congress, civic education, constitutional litigation, privileges and immunities, thirteenth amendment

Suggested Citation

Graber, Mark, Teaching the Forgotten Fourteenth Amendment and the Constitution of Memory (March 7, 2018). St. Louis University Law Journal, Forthcoming, U of Maryland Legal Studies Research Paper No. 2018-09, Available at SSRN: https://ssrn.com/abstract=3135999

Mark Graber (Contact Author)

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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