The Antebellum Political Background of the Fourteenth Amendment

Epps presents information concerning the historical context of the Fourteenth Amendment. Among other implications, the Amendment should be viewed as an effort to defend the national government from control by transient majorities or undemocratic factions in the states

“You Have Been in Afghanistan”: A Discourse on the Van Alstyne Method

This essay pays tribute to William Van Alstyne, one of our foremost constitutional scholars, by applying the methods of textual interpretation he laid out in a classic essay, Interpreting This Constitution: On the Unhelpful Contribution of Special Theories of Judicial Review. I make use of the graphical methods Van Alstyne has applied to the general study of the First Amendment to examine the Supreme Court\u27s recent decisions in the context of the Free Exercise Clause, in particular the landmark case of Employment Division v. Smith . The application of Van Alstyne\u27s use of the burden of proof as an interpretive tool and the results of the application of the graphic analysis, I argue, suggest that Smith is a gravely flawed decision, inconsistent both with precedent and with sophisticated textual analysis of the sort that much of Van Alstyne\u27s own distinguished scholarship holds before us as a model of principled and neutral constitutional application

The Other Sullivan Case

The standard triumphalist narrative of NEW YORK TIMES V. SULLIVAN celebrates the Supreme Court\u27s defense of free speech and press in the case\u27s vindication of powerful journalistic institution. Ignored in this story is the story of the local defendants, civil rights leaders in Alabama who had their solvency threatened by the state courts\u27 vindictive action against them. These defendants challenged the segregated proceedings used in court to affix liability to them—but the Supreme Court ignored their arguments and ignored the racial-equality and individual-rights aspects of the case. From their point of view, SULLIVAN might be so unalloyed a triumph

The Other Sullivan Case

The standard triumphalist narrative of NEW YORK TIMES V. SULLIVAN celebrates the Supreme Court\u27s defense of free speech and press in the case\u27s vindication of powerful journalistic institution. Ignored in this story is the story of the local defendants, civil rights leaders in Alabama who had their solvency threatened by the state courts\u27 vindictive action against them. These defendants challenged the segregated proceedings used in court to affix liability to them—but the Supreme Court ignored their arguments and ignored the racial-equality and individual-rights aspects of the case. From their point of view, SULLIVAN might be so unalloyed a triumph

Interpreting the Fourteenth Amendment: Two Don\u27ts and Three Dos

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North and the South, and of Southern Unionists and Northern migrants in the former Confederacy. The second misconception is that the central purpose of the Amendment was to constitutionalize the Civil Rights Act of 1866, and that section 1 can thus be interpreted as chiefly incorporating the short list of basic civil rights protected by that Act. Both the legislative record and the statements by the Amendment\u27s sponsors during the debate over its framing demonstrate that the Amendment was an independent measure aimed at a much broader set of reforms in state institutions. The author suggests that the record does support three positive statements about the Amendment. The first is that the Amendment was aimed at addressing systemic flaws in the Constitution of 1787. The second proposition builds on the first by suggesting that the major flaw the framers saw in the original Constitution was its empowerment of a complex political and social institution widely known to antebellum thinkers as the Slave Power, a set of privileges for slavery that had permitted the slave states to dominate the federal government since at least 1800. The last proposition is that the Amendment, having been forged during an intense struggle between the executive and legislative branches, had as one of its aims to empower Congress, and that current jurisprudence that reads it as primarily concerned with empowering the federal courts misconceives the historical context from which it emerged. Finally, the author suggests that the broad political focus of the Amendment invites current interpretations that draw on political theory about the requirements of a genuinely democratic system, and that one such theory is the idea of the open society proposed during the mid-twentieth century by the influential philosopher Karl Popper

Lecture: Second Founding: The Story of the Fourteenth Amendment

The story of the Framing of the Fourteenth Amendment is a lost story of American history, covered over by Southern inspiring myth making and an unwillingness to grapple with the central role of slavery in American history. Americans can take new inspiration from that story and use it as an example of how our popular democracy can be perfected. Even today, nearly a century and a half after the Second Founders did their work, their words and example move before us as a people, a cloud by day, a pillar of fire by night