The Original Meaning of the Fourteenth Amendment

Randy Barnett and Evan Bernick return to the primary sources on the origin, drafting and adoption of the Fourteenth Amendment to better understand its original meaning. Arguing that it protected principles of Republican citizenship, fundamental rights and civic equality, they propose workable doctrines for implementing these principles in practice.

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A Federalist Notable Book

“An important contribution to our understanding of the 14th Amendment.”
—Wall Street Journal

“By any standard an important contribution…A must-read.”
—National Review

“The most detailed legal history to date of the constitutional amendment that changed American law more than any before or since…The corpus of legal scholarship is richer for it.”
—Washington Examiner

Adopted in 1868, the Fourteenth Amendment profoundly changed the Constitution, giving the federal judiciary and Congress new powers to protect the fundamental rights of individuals from being violated by the states. Yet, the Supreme Court has long misunderstood or ignored the original meaning of its key Section I clauses.

Barnett and Bernick contend that the Fourteenth Amendment must be understood as the culmination of decades of debate about the meaning of the antebellum Constitution. In the course of this debate, antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence, and the common law, as well as what is today called public-meaning originalism.

The authors show how these arguments and the principles of the Declaration in particular eventually came to modify the Constitution. They also propose workable doctrines for implementing the amendment’s key provisions covering the privileges and immunities of citizenship, due process, and equal protection under the law.