No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment

By James E. Bond | Go to book overview

1
The Remembered Past of the Fourteenth Amendment

The Warren Court "imagined the past and remembered the future."

-- ProfessorAlexander Bickel, critiquing the Court's attempt to construct the "Egalitarian Society"

The Civil War redefined the American nation, and the legal essence of that redefinition was captured in three constitutional amendments. 1 The first abolished slavery, and the third extended suffrage to all adult males without regard to color. The second--the Fourteenth Amendment--prohibited the states from denying or abridging the fundamental rights of every citizen and required them to grant all persons equal protection and due process. Its first section has in fact become a second American constitution, and its meaning is the preeminent question of contemporary constitutional law.Although the amendment guarantees both substantive rights and procedural fairness, the three great clauses of Section 1 do not specify either the rights protected or the procedures required. 2 While Section 5 grants Congress the power to enforce Section 1 by "appropriate legislation," it is silent on how, if at all, the federal structure of the government limits that power. 3 The effort to provide that specification and fill that silence has raised two profoundly troubling questions:
Is the Fourteenth Amendment the new birth of freedom for which Lincoln prayed at Gettysburg or the Jacobin nightmare predicted by its post-Civil War critics?
Should the amendment's oracle, the Supreme Court, be praised for finally fulfilling the Declaration of Independence's promise of equality and fairness for all or be damned for destroying the republican bulwarks that alone preserve individual liberty?

The answers to these questions divided the Court and the country as early as the Slaughter-House Cases. 4 They divide both still.

-1-

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No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • 1 - The Remembered Past of the Fourteenth Amendment 1
  • Notes 10
  • 2 - Ratification in Tennessee 15
  • Notes 26
  • 3 - Ratification in Mississippi 33
  • Notes 47
  • 4 - Ratification in North Carolina 53
  • Notes 65
  • 5 - Ratification in Louisiana 75
  • Notes 95
  • 6 - Ratification in Alabama 101
  • Notes 114
  • 7 - Ratification in South Carolina 121
  • Notes 137
  • 8 - Ratification in Virginia 143
  • Notes 158
  • 9 - Ratification in Florida 169
  • Notes 183
  • 10 - Ratification in Arkansas 189
  • Notes 205
  • 11 - Ratification in Texas 211
  • Notes 225
  • 12 - Ratification in Georgia 231
  • Notes 245
  • 13 - The Imagined Future of the Fourteenth Amendment 251
  • Notes 272
  • Selected Bibliography 275
  • Index 289
  • About the Author 297
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