The Cherokee Removal and the Fourteenth Amendment

91 Pages Posted: 30 Mar 2006 Last revised: 3 May 2014

See all articles by Gerard N. Magliocca

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Date Written: 2003

Abstract

This Article recasts the original understanding of the Fourteenth Amendment by showing how its drafters were influenced by the events that culminated in The Trail of Tears. A fresh review of the primary sources reveals that the removal of the Cherokee Tribe by President Andrew Jackson was a seminal moment that sparked the growth of the abolitionist movement and then shaped its thought for the next three decades on issues ranging from religious freedom to the antidiscrimination principle. When these same leaders wrote the Fourteenth Amendment, they expressly invoked the Cherokee Removal and the Supreme Court's opinion in Worcester v. Georgia as relevant guideposts for interpreting the new constitutional text. The Article concludes by probing how that forgotten bond could provide the springboard for a reconsideration of free exercise and equal protection doctrine once courts begin exploring the meaning of this Cherokee Paradigm of the Fourteenth Amendment.

Keywords: Fourteenth Amendment, Cherokee removal

Suggested Citation

Magliocca, Gerard N., The Cherokee Removal and the Fourteenth Amendment (2003). Duke Law Journal 53, no. 3 (2003): 875-965. Available at SSRN: https://ssrn.com/abstract=892605

Gerard N. Magliocca (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4792 (Phone)

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