Exploring the Fourteenth Amendment

Intentions and interpretations of protecting the rights of U.S. citizenship and due process.

Posted on July 25, 2017 in Hot Topic

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Bond, James E. No easy walk to freedom: Reconstruction and the ratification of the Fourteenth Amendment. Praeger, 1997. 295p ISBN 0275957039, $65.00.
Reviewed in CHOICE December 1997

Bond examines the ratification debates in 11 southern states over the Fourteenth Amendment. He attempts to recapture the original intent—as it bore meaning in southerners’ minds—of Section 1 (the due process clause). He concludes that contrary to modern interpretation, no southerner on either side of the issue dreamed that the Fourteenth Amendment was intended to incorporate the Bill of Rights. Southerners assumed that the states would be the guarantors of citizens’ rights and, more to the point, they would enjoy substantial latitude in determining the scope of those rights. They did fear, however, the power of Congress, under Section 5, to substitute its judgment for theirs on public policy issues. Bond maintains that by incorporating the Bill of Rights into Section 1, the modern Supreme Court has so expanded the power of Congress that the Union “has been transformed into a centralized government in which the states act primarily as minions of the national government … [and] exercise only such discretion as the national government permits.” He calls for the Court to re-imagine the amendment in the light of the dreams of freedmen and concludes that the most articulate spokesperson for those dreams is Justice Clarence Thomas. Summing Up: General readers. —M. Morrison, Purdue University

Glidden, William B. Congress and the Fourteenth Amendment: enforcing liberty and equality in the states. Lexington Books, 2013. 177p ISBN 9780739185735, $80.00; ISBN 9780739185742 ebook, $79.99.
Reviewed in CHOICE May 2014

Glidden presents a novel interpretation of the intent of the Fourteenth Amendment. Deftly packing in nearly 150 years of legislative and judicial history, Glidden argues that the Supreme Court eviscerated the true purpose of the amendment by limiting its scope to state action. He concludes with a proposal of how Congress could be restored to its rightful position to more meaningfully enforce the amendment. Glidden’s fundamental premise that the Fourteenth Amendment was intended to impose a duty on the states to provide equal protection of the law, however, is weakened by two flaws. First, the amendment’s language about not abridging, depriving, or denying is not the logical “equivalent” of imposing an affirmative duty on states. Yet Glidden merely assumes this relationship without any critical analysis. Second, the evidence offered to support Glidden’s fundamental premise is not sufficient, and omits alternate or dissenting interpretations needed to assess the accuracy of Glidden’s foundational assumptions. Nevertheless, for its willingness to connect current congressional limitations to a fresh analysis of the historical record, Glidden’s book makes a contribution worthy of consideration. Summing Up: Recommended. Upper-division undergraduate, graduate, and research collections. —V. A. Farrar-Myers, University of Texas Arlington

Halbrook, Stephen P. Freedman, the Fourteenth Amendment, and the right to bear arms, 1866-1876. Praeger, 1998. 230p ISBN 0-275-96331-4, $55.00.
Reviewed in CHOICE May 1999

Though Halbrook’s legal chronicle of the post-Civil War decade is dry and relentlessly bland, it is a work of very considerable value. Thoroughly researched, the study rests on a more exacting examination of the relevant source material than any other study of the public record of the Joint Committee of Fifteen. Halbrook surveys sectional violence against the freedmen as well as the Black Codes and then burrows deep into relatively unexplored ground, surveying Southern state constitutions, laws, court cases dealing with the civil rights of blacks, and federal court trials of Klansmen under the 1871 Enforcement Act. He conclusively demonstrates that the Joint Committee deliberately incorporated the Bill of Rights into the due process clause of the Fourteenth Amendment to secure state citizens against state legislative infringement—which shows a capacity for forward planning not usually attributed to politicians and marks an earlier realization of the incorporation theory than is usually recognized by legal scholars. Halbrook’s study would have greater density had it not ignored the social and political forces—such as congressional-presidential tensions—swirling around these legal developments, but the cavils are more than balanced by the fresh dimension it provides. Summing Up: Graduate, faculty. —M. Cantor, University of Massachusetts at Amherst

Infinite hope and finite disappointment: the story of the first interpreters of the Fourteenth Amendment, ed. by Elizabeth Reilly. Akron, 2011. 301p ISBN 1935603000 pbk, $22.95; ISBN 9781935603009 pbk, $22.95.
Reviewed in CHOICE May 2012

This volume of essays by historians and legal scholars tracks the initial reactions to the Fourteenth Amendment in its founding period. The essays examine the intentions of the amendment’s framers and the interpretations offered by contemporary courts, as well as popular conceptions of the amendment’s provisions and guarantees. It is this diversity of perspectives that makes the book an especially valuable contribution to the literature on American constitutional development. The chapters on the amendment’s fate in Congress highlight the lofty goals held by many of its drafters, and how those goals were affected by the political dynamics of the period. Although the Supreme Court’s systematic interpretive attacks on the amendment are a frequently told story, the essays here provide a fresh perspective that will be useful to teachers of this material. Finally, and perhaps most importantly, the volume spotlights how the amendment was viewed and put into practice by nongovernmental actors of the day, with particular attention paid to emerging transformative ideas about citizenship for women and blacks. The book’s interdisciplinary approach gives it an appeal to a variety of scholars. Summing Up: Recommended. Graduate and research collections. —S. B. Lichtman, Shippensburg University

Labbé, Ronald M. The slaughterhouse cases: regulation, reconstruction, and the Fourteenth Amendment, by Ronald M. Labbé and Jonathan Lurie. University Press of Kansas, 2004. 295p ISBN 0700612904, $34.95.
Reviewed in CHOICE October 2004

Both authors of this case study of the Slaughter House Cases are well qualified to perform this task. Labbé has a long list of publications on Louisiana politics and law, and Lurie has published a key text on American military justice. Although there is much existing literature on the Slaughter House Cases, this is the first book-length manuscript to focus on this topic. This Supreme Court decision is significant because it was the first time that the Court lent its interpretation to the 14th Amendment to the US Constitution. The authors not only offer an excellent discussion of the majority and minority opinions, but also provide much interesting background for the case and likewise assess its historical significance. The volume compares with other case studies of major Supreme Court decisions: The Plessey Case: A Legal-Historical Interpretation, by Charles A. Lofgren (1987), and Marshall versus Jefferson: The Political Background of Marbury v. Madison, by Donald O. Dewey (1970). The easy-to-follow text contains an excellent bibliography and is well-indexed. Summing Up: Highly recommended. Upper-division undergraduates and above. —R. A. Carp, University of Houston

Magliocca, Gerard N. American founding son: John Bingham and the invention of the Fourteenth Amendment. New York University, 2013. 295p ISBN 9780814761458, $39.00.
Reviewed in CHOICE February 2014

For someone so involved with the watershed events of 19th-century US history, John A. Bingham has largely escaped modern scholars’ notice, even in the current boom of Civil War-era commemorations. This oversight is puzzling, since Bingham was a major political figure of his time, as Magliocca (law, Indiana) ably demonstrates. The Ohioan served in the House of Representatives from the mid-1850s to the early 1870s, with only one brief interruption. Allied with the antislavery movement, Bingham was a powerful member of the new Republican Party. During the Civil War and Reconstruction, he was the architect of several initiatives, most prominently the Fourteenth Amendment. He served as a prosecutor in the trial of Lincoln’s assassins, and was one of the House lawyers in the impeachment of Andrew Johnson. He concluded his public career as ambassador to Japan. Magliocca takes readers through a learned yet accessible analysis of Bingham’s legal and congressional careers, showing how Bingham’s constitutional thought on citizenship, rights, and liberties evolved, climaxing with his drafting of the Fourteenth Amendment’s preamble. Students of legal, constitutional, and Civil War-era history should read this fine volume on an important yet neglected figure. Summing Up: Highly recommended. Advanced undergraduates and above. —K. M. Gannon, Grand View University

Nelson, William E. The Fourteenth Amendment: from political principle to judicial doctrine. Harvard, 1988. 253p ISBN 0674316258, $25.00.
Reviewed in CHOICE April 1989

In this stimulating, resourceful study of the 14th Amendment Nelson (New York University) displays that remarkably elusive quality, objectivity. In his view the essence of history is “the identification of continuities and discontinuities between past and present” and the history of the 14th Amendment reflects a discontinuity: the strikingly different constitutional worlds of the statesmen of “Reconstruction” and the judges of today. Nelson canvasses extant historical scholarship and analyzes the significance of the trilogy of liberty, equality, and federalism in the adoption of the 14th Amendment. He maintains that in its judicial construction the Supreme Court avoided divisive statements of principle by deciding cases on the basis of the equality concept, the vagueness and emptiness of which helped to keep it acceptable to diverse groups in pluralistic late 19th-century America. Later, when the justices disrupted the pattern and created inflexible constitutional rights in such cases as Lochner v. New York and Roe v. Wade, they precipitated a public outcry. The question of judicial reliance on “original intent” is inapposite because no clear intent was ever discernible from a reading of the debates surrounding the proposal and adoption of the 14th Amendment. Every sitting federal judge ought to read and ponder this book before placing his imprimatur on 14th Amendment laws, since it is the most creative and convincing treatment of the subject to date. Extensive documentation and adequate index. Summing Up: For upper-division undergraduates, graduate students, and faculty. —R. J. Steamer, University of Massachusetts at Boston

Perry, Michael J. We the people: the Fourteenth Amendment and the Supreme Court. Oxford, 1999. 275p ISBN 019512362X, $35.00.
Reviewed in CHOICE April 2000

“The Supreme Court has illegitimately usurped political power in the US.” Or so claim political conservatives who contend that the Court is making decisions best left to the states and other branches of the government. Perry (law, Wake Forest Univ.) responds to these critics, arguing that in the area of discrimination against racial minorities, women, and gays, the Fourteenth Amendment gives Congress broad authority to act. However, in the case of abortion, and if the Court were to recognize a constitutional right to physician-assisted suicide, he believes that the Court is exceeding its authority. We the People develops a detailed, occasionally tortured, but highly intelligent reading of the Constitution and how to interpret it and its amendments. Based on his reading of the Fourteenth Amendment, Perry claims that the Reconstructionists created a political norm endorsing congressional authority to eradicate all forms of discrimination. This “anti-discrimination norm” supports civil rights protection for many groups, yet efforts to create abortion and physician-assisted suicide rights are illegitimate. The book concludes that conservatives are partially correct in their claims of judicial usurpation. Summing Up: An excellent complement to law, Civil War, and constitutional interpretation collections for upper-division undergraduates, graduate students, faculty, and professionals. —D. Schultz, Hamline University

Siegan, Bernard H. Property rights: from Magna Carta to the Fourteenth Amendment. Social Philosophy and Policy Foundation/Transaction, 2001. 329p ISBN 0765800578, $49.95; ISBN 0765807556 pbk, $29.95.
Reviewed in CHOICE June 2002

Property rights and their protection are a central theme of Anglo-American jurisprudence and politics. Many see these rights as essential to the maintenance of individual rights, democracy, and limited government and at the heart of what a constitution is meant to protect. Siegan (law, Univ. of San Diego) endorses these claims with a historical and legal analysis of the role of property rights in American constitutional law. Beginning with their English roots in the Magna Carta, the author documents the views of various British thinkers such as John Locke, William Blackstone, and Lord Coke, clarifying how their views on property rights influenced American law and the constitutional framers such as James Madison. The book moves from Colonial experiences to analysis of the various ways the Constitution, including the 5th and 14th Amendments, and state constitutions have defended property rights against government action. The author concludes by offering his views on how best to interpret the law to defend property rights and why their protection should be seen as an important civil right still relevant today. Summing Up: Suitable to augment collections on American law, the Constitution, the Bill of Rights, and American history. All levels. —D. Schultz, Hamline University

West, Robin. Progressive constitutionalism: reconstructing the Fourteenth Amendment. Duke University, 1995 (c1994). 359p ISBN 0822315254, $39.95.
Reviewed in CHOICE May 1995

West (law, Georgetown) has collected ten previously published essays centered generally on the topic of reconstructing the Fourteenth Amendment along more progressive lines. Like other scholars, West argues that the amendment has been misinterpreted and is in need of a transformation; unlike most of them, however, she favors a legislative rather than a judicial reconstruction. The most intriguing chapters of the work examine the equal protection clause and the “liberty” prong of the due process clause, in which she analyzes the original abolitionist understandings of those phrases, an analysis that is sure to give great pause to interpretivists such as Robert Bork. She ultimately concludes that the answer lies in emphasizing the “protection” component of equal protection and in guaranteeing the positive liberties of citizenship. Much of what she says resonates with common sense, such as the elimination of the spousal exemption for rape and the notion that the amendment may allow—not require or prohibit—affirmative action. Yet, her incursions on the First Amendment in the name of her version of equal protection and liberty will raise great cries of anguish among those who do not share her vision of utopia. Likewise, her call for legislative action is worrisome in an atmosphere of conservative (not libertarian) Republican control of Congress. West’s theories are well reasoned and will shape debates for years to come. Summing Up: Recommended for all those interested in the Constitution. —M. W. Bowers, University of Nevada, Las Vegas

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