The Continuity of the Fourteenth Amendment with the Founding

At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.

In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty.  The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution.

For instance, before the War Southern states tried to gag discussion of petitions on slavery on the House floor and banish criticism of the peculiar institution from the federal mails, in obvious violation of constitutional guarantees. Slavery supporters also burned down abolition newspapers.  They tried to ban books that argued that the wages of Southerners who did not own slaves were decreased by the institution of slavery.  As Michael Kent Curtis noted, these acts allowed the North to reframe the debate about slavery as one about established constitutional liberties and the freedom of labor generally. And commercial expansion was strengthening the North far more than the South.
These developments show how the commercial republic established by original constitution naturally isolated slavery despite the electoral advantages provided by the Three Fifths Clause.

The text of the Fourteenth Amendment itself shows the continuity with the original constitution as well. It guarantees against the states the right of due process that was originally guaranteed only against the federal government.  Even more importantly, it prevented the abridgement of the privileges or immunities of all citizens by their own states—in my view the key guarantee of the amendment.  As Justice Stephen Field stated in the Slaughterhouse Cases, the Privileges or Immunities Clause in the 14th Amendment prohibited discrimination by a state against its own citizens in enjoyment of these rights, just as Article IV in the original Constitution prohibited similar discrimination against out of–state citizens. One reason for the power of Justice Field’s opinion is its embedding the Privileges or Immunities Clause of 14th Amendment in a concept already etched in the original constitution. And, as I have argued, economic liberties are central components of privileges or immunities. The 14th Amendment thus further entrenched the principles of a commercial republic. Would that we return to the promise of those principles today!

 

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. gabe says

    “electoral advantages provided by the Three Fifths Clause.”

    To be fair. it was not as much of an advantage as those slave holding miscreants would have preferred, having been reduced by Two-Fifths by some deft maneuvering on the part of Northern delegates.

    Can one imagine how much more difficult it would have been to counter Southern barbarism without the Three-Fifths Clause.

    Then again, without the need for the South to compromise, perhaps the South would have been even more aggressive and the War would have come sooner.

  2. gabe says

    John:

    Help me out here!

    Did not Slaughterhouse afford protection for Federal P&I and not State level P&I? Field was in dissent.

    Could not a case be made that Slaughterhouse was correct from a Federalism standpoint and that the States as semi-distinct republics could afford varying levels of P&I provided that States did not infringe upon Federal P&I?

    So how come we to a point where Federal courts impose Federal P&I (of their own creation?) upon State republics. Again, SSM, trans-bathrooms, etc WERE traditionally State level concerns – as were a number of economic regulations. (No, I don;t support the Slaughterhouse and Crescent City monopoly, etc).

    Still, we find ourselves in a strange world where the Federales and its Judicial arm now interposes itself in all manner of local affairs. Ahhh! Substantive Due Process some may say. Curious, isn’t it, that substantive Due Process is not “available” to any person who disputes the regulations created by these same Federales.who insist that it be available to citizens against the States.

    Oh what a happy world!

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