Randy E. Barnett - The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit

TheOriginal Meaning of theFourteenth Amendment

Its Letter and Spirit

RANDY E. BARNETT

EVAN D. BERNICK

Foreword by

JAMES OAKES

THE BELKNAP PRESS OF
HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts

London, England

2021

Copyright 2021 by the President and Fellows of Harvard College

All rights reserved

Jacket design by Gabriele Wilson

978-0-674-25776-4 (cloth)

978-0-674-27013-8 (EPUB)

978-0-674-27012-1 (PDF)

The Library of Congress has cataloged the printed edition as follows:

Names: Barnett, Randy E., author. | Bernick, Evan D., author. | Oakes, James, writer of foreword.

Title: The original meaning of the Fourteenth Amendment : its letter and spirit / Randy E Barnett, Evan D Bernick ; foreword by James Oakes.

Description: Cambridge, Massachusetts : The Belknap Press of Harvard University Press, 2021. | Includes bibliographical references and index.

Identifiers: LCCN 2021009361

Subjects: LCSH: United States. Constitution. 14th Amendment. | Privileges and immunitiesUnited States. | Due process of lawUnited States. | Equality before the lawUnited States.

Classification: LCC KF4558 14th .B37 2021 | DDC 342.7308/5dc23

LC record available at https:// lccn .loc .gov /2021009361

RANDY:
To my wife, Beth, my mother, Florice, and in loving memory of my father, Ronald

EVAN:
To my wife, Sarah, and my parents, Christine and David

1. James Oakes

T HERE ARE FEW HISTORICAL clich s more hoary than this one: The abolitionists were a tiny, beleaguered minority, widely despised all across the North.The evidence compiled by Randy E. Barnett and Evan D. Bernick strongly suggests that this is a clich badly in need of revision. Not because the abolitionists were in fact popularthey were notbut because they were influential. Profoundly influential, in fact. For it was the constitutional abolitionists who developed, as the title of this book says, the original meaning of the Fourteenth Amendment .

Historians do not write books like this one, aimed as it is at getting the justices of the United States Supreme Court to change the way they interpret the Constitution. Written by two law professors, this book is explicitly, unabashedly designed to persuade the Court to reconsider some longstanding constitutional assumptions about the Fourteenth Amendment.

But to make their case, the lawyers have written a history book. The questions they raise are deeply historical. Where did the phrase privileges and immunities originate? What did the phrase originally mean, and how did that meaning change over time? What did it mean by the time the authors of the Fourteenth Amendment invoked it? So, too, with due process of law and equal protection of the law. Where did those terms originate, and what did they mean in 1868, when Republican lawmakers inserted them into the amendment?

To be sure, Barnett and Bernick are originalists. They would have the Constitution interpreted, even today, in accordance with the original publicmeaning of the text. At first glance this might raise eyebrows among my fellow historians. We are generally more comfortable with multiple or conflicting meanings, with meanings that change over time. We tend to be empiricists more than theorists. We are willing to consider original intent