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

By James E. Bond | Go to book overview

those rights. The historical context also clarifies two other understandings implicit in that answer. One, no one believed that Section 1 incorporated the Bill of Rights. Two, the proponents of the amendment anticipated that state governments would continue to exercise broad discretion in defining the incidents of the rights which were guaranteed.

Illuminating as this common understanding is, it does not provide definitive answers to every contemporary question about the meaning of the Fourteenth Amendment. This widely shared understanding nevertheless contradicts much of the Supreme Court's current Fourteenth Amendment jurisprudence. If the ratification debates in other states reflect a similar consensus, a major reassessment of that jurisprudence would seem to be required. Almost from the beginning, the Court has erred in its assessment of the original understanding. Pursuing that initial error erratically through the succeeding century, the Court appears to have created an amendment wholly different from the one it is obliged to interpret. If constitutional questions are never settled until they are settled in conformity with the original understanding, 24 many Fourteenth Amendment questions long thought settled must now be reopened.


NOTES
1.
See, e.g., Michael Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights ( Durham, N.C.: Duke University Press, 1986); Joseph James, The Framing of the Fourteenth Amendment ( Macon, Ga.: Mercer University Press, 1984); Jacobus Ten Broeck, Equal under Law ( New York: Collier, 1965) (originally published in 1951 under the title The Anti-Slavery Origins of the Fourteenth Amendment); Howard J. Graham , "The Early Anti-Slavery Backgrounds of the Fourteenth Amendment," Wisconsin Law Review ( 1950): 479, 610.
2.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, amend. 14, sec. 1.
3.
"Congress shall have the power to enforce this amendment by appropriate legislation." U.S. Constitution, amend. 14, sec. 5.
4.
Slaughter-House Cases, 83 U.S. 36 ( 1872).
5.
The importance of state ratification debates has been acknowledged in other circumstances. The clearest instance, of course, is the ratification of the original Constitution. The Federalist Papers, the most frequently consulted source on the original understanding of the Constitution, is a collection of letters to newspapers, designed to influence the ratification vote in New York. Indeed, the views which the federalists and anti-federalists articulated during the ratification debates in the states are considered so illuminating that they have now been collected for ready reference. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (Introduction, Table of Contents, and Index of Ideas by Clinton Rositer) ( New York: New American Library, 1961). Morton Borden, The Antifederalist Papers ( East Lansing: Michigan State University Press, 1965). During oral

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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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