Randy E. Barnett and Evan D. Bernick, "The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit" (Harvard UP, 2021)

Adopted in 1868, the Fourteenth Amendment profoundly changed the US constitution, giving the federal judiciary and Congress new powers to protect the fundamental rights of individuals from being violated by the states. In The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Harvard University Press, 2022), Dr. Randy Barnett and Dr. Evan Bernick argue that the Supreme Court has long misunderstood or ignored the original meaning of the amendment’s key clauses, covering the privileges and immunities of citizenship, due process of law, and the equal protection of the laws. In fact, they argue that “it is simply not the case that the Court’s current Fourteenth Amendment doctrine gives us everything that the original meaning of the Fourteenth Amendment promises.”

Dr. Barnett and Dr. Bernick contend that the Fourteenth Amendment was the culmination of decades of debates about the meaning of the antebellum constitution. Antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence, and the common law. They also utilised what is today called public-meaning originalism. Although their arguments lost in the courts, the Republican Party was formed to advance an antislavery political agenda, eventually bringing about abolition. Then, when abolition alone proved insufficient to thwart Southern repression and provide for civil equality, the Fourteenth Amendment was enacted. It went beyond abolition to enshrine in the Constitution the concept of Republican citizenship and granted Congress power to protect fundamental rights and ensure equality before the law. Finally, Congress used its powers to pass Reconstruction-era civil rights laws that tell us much about the original scope of the amendment.

In this book, the authors identified the original meaning of the phrase “privileges or immunities of citizens of the United States” by examining the evidence from the Founding, from the antebellum period, from the drafting and ratification of the clause, and from the post-ratification interpretations in Congress and by courts and academic commentators. They argue that this mass of evidence shows that “privileges or immunities” encompassed civil rights, as distinguishes from “political” or “social” rights, and included the civil right to impartial treatment by civic institutions.” With attention to primary sources, the book shows how the principles of the Declaration eventually came to modify the Constitution and proposes workable doctrines for implementing the key provisions of Section 1 of the Fourteenth Amendment.

This interview was conducted by Dr. Miranda Melcher whose doctoral work focused on post-conflict military integration, understanding treaty negotiation and implementation in civil war contexts, with qualitative analysis of the Angolan and Mozambican civil wars.

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