The Second Founding: An Introduction to the Fourteenth Amendment
Posted: 20 Nov 2020
Date Written: November 7, 2020
It has become conventional wisdom among originalist scholars that the privileges or immunities clause of the Fourteenth Amendment incorporates the bill of rights against the states, guarantees unenumerated fundamental rights, or both. The clause, however, likely does neither. In my new book, The Second Founding: An Introduction to the Fourteenth Amendment, I examine the three antebellum legal concepts at the heart of the Fourteenth Amendment’s first section; the historical and political problems confronting the framers of the Amendment; and how the framers deployed the antebellum legal concepts to solve these historical problems. This legal and political history strongly suggests that the privileges or immunities clause was intended to be an antidiscrimination provision with respect to civil rights under state law.
The book innovates in a few ways over prior scholarship. First, it relies on the “language of the law” and the general political history of the period, with minimal resort to the more unreliable legislative debates in the Thirty-Ninth Congress. The antebellum legal materials suggest that due process of law was indeed about process, not substance; that the protection of the laws was about government protection against private invasion of private rights; and that privileges and immunities provisions were overwhelmingly about nondiscrimination. Indeed, in light of the historical meanings of due process and protection of the laws, only an antidiscrimination reading of the privileges or immunities clause would succeed in constitutionalizing the Civil Rights Act of 1866, the central objective of the Fourteenth Amendment’s framers.
Second, the book shows how the antebellum political history, so often cited in support of incorporation or the fundamental rights reading of the privileges or immunities clause, actually supports the antidiscrimination reading. Third, it responds to other recent accounts of the privileges or immunities clause, propounded respectively by Phillip Hamburger, Kurt Lash, Akhil Amar and Michael Kent Curtis, and Randy Barnett and shows why each account is likely mistaken in light of the relevant antebellum legal and political history. Fourth, it suggests normative reasons to favor the antidiscrimination reading: it is the only reading that supports the outcome in Brown v. Board of Education, and possibly even in Obergefell v. Hodges; and it would allow the states to innovate away from controversial Supreme Court interpretations of modern rights in an era when many worry about the Court “weaponizing” such rights. Fifth, it shows that an originalist seeking to defend incorporation may still be able to do so; but she would have to rely on arguments from “liquidation,” the originalist version of historical gloss.
Keywords: constitutional law, constitution, fourteenth amendment, due process, equal protection, privileges or immunities, slavery, abolitionism, police powers, class legislation, Magna Charta, petition of right, William Blackstone, comity clause, black codes, birthright citizenship, civil rights act
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