This book presents the history behind the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment.

From 1840 to 1960 the profoundest claim of Americans who fought the institution of segregation was that the government had no business sorting citizens by the color of their skin. During these years the moral and political attractiveness of the antidiscrimination principle made it the ultimate legal objective of the American civil rights movement. Yet, in the contemporary debate over the politics and constitutional law of race, the vital theme of antidiscrimination has been largely suppressed. Thus a strong line of argument laying down one theoretical basis for the constitutional protection of civil rights has been lost. Andrew Kull provides us with the previously unwritten history of the color-blind idea. From the arguments of Wendell Phillips and the Garrisonian abolitionists, through the framing of the Fourteenth Amendment and Justice Harlan's famous dissent in Plessy, civil rights advocates have consistently attempted to locate the antidiscrimination principle in the Constitution. The real alternative, embraced by the Supreme Court in 1896, was a constitutional guarantee of reasonable classification. The government, it said, had the power to classify persons by race so long as it acted reasonably; the judiciary would decide what was reasonable. In our own time, in Brown v. Board of Education and the decisions that followed, the Court nearly avowed the rule of color blindness that civil rights lawyers continued to assert; instead, it veered off for political and tactical reasons, deciding racial cases without stating constitutional principle. The impoverishment of the antidiscrimination theme in the Court's decision prefigured the affirmative action shift in the civil rights agenda. The social upheaval of the 1960s put the color-blind Constitution out of reach for a quartercentury or more; but for the hard choices still to be made in racial policy, the colorblind tradition of civil rights retains both historical and practical significance.

The Privileges or Immunities Clause of the Fourteenth Amendment is arguably the most historically important clause of the most significant part of the US Constitution. Designed to be a central guarantor of civil rights and civil liberties following Reconstruction, this clause could have been at the center of most of the country's constitutional controversies, not only during Reconstruction, but in the modern period as well; yet for a variety of historical reasons, including precedent-setting narrow interpretations, the Privileges or Immunities Clause has been cast aside by the Supreme Court. This book investigates the Clause in a textualist-originalist manner, an approach increasingly popular among both academics and judges, to examine the meanings actually expressed by the text in its original context. Arguing for a revival of the Privileges or Immunities Clause, author Christopher Green lays the groundwork for assessing the originalist credentials of such areas of law as school segregation, state action, sex discrimination, incorporation of the Bill of Rights against states, the relationship between tradition and policy analysis in assessing fundamental rights, and the Fourteenth Amendment rights of corporations and aliens. Thoroughly argued and historically well-researched, this book demonstrates that the Privileges or Immunities Clause protects liberty and equality, and it will be of interest to legal academics, American legal historians, and anyone interested in American constitutional history.

Citizenship as Foundation of Rights explains what it means to have citizen rights and how national identification requirements undermine them.

In The Second Founding: An Introduction to the Fourteenth Amendment, Ilan Wurman provides an illuminating introduction to the original meaning of the Fourteenth Amendment's famous provisions 'due process of law,' 'equal protection of the laws,' and the 'privileges' or 'immunities' of citizenship. He begins by exploring the antebellum legal meanings of these concepts, starting from Magna Carta, the Statutes of Edward III, and the Petition of Right to William Blackstone and antebellum state court cases. The book then traces how these concepts solved historical problems confronting framers of the Fourteenth Amendment, including the comity rights of free blacks, private violence and the denial of the protection of the laws, and the notorious abridgment of freedmen's rights in the Black Codes. Wurman makes a compelling case that, if the modern originalist Supreme Court interpreted the Amendment in 'the language of the law,' it would lead to surprising and desirable results today.

A renowned constitutional scholar and a rising star provide a balanced and definitive analysis of the origins and original meaning of the Fourteenth Amendment. Adopted in 1868, the Fourteenth Amendment profoundly changed the Constitution, giving the federal judiciary and Congress new powers to protect the fundamental rights of individuals from being violated by the states. Yet, according to Randy Barnett and Evan Bernick, the Supreme Court has long misunderstood or ignored the original meaning of the amendmentÕs key clauses, covering the privileges and immunities of citizenship, due process of law, and the equal protection of the laws. Barnett and Bernick contend that the Fourteenth Amendment was the culmination of decades of debates about the meaning of the antebellum Constitution. Antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence, and the common law. They also utilized what is today called public-meaning originalism. Although their arguments lost in the courts, the Republican Party was formed to advance an antislavery political agenda, eventually bringing about abolition. Then, when abolition alone proved insufficient to thwart Southern repression and provide for civil equality, the Fourteenth Amendment was enacted. It went beyond abolition to enshrine in the Constitution the concept of Republican citizenship and granted Congress power to protect fundamental rights and ensure equality before the law. Finally, Congress used its powers to pass Reconstruction-era civil rights laws that tell us much about the original scope of the amendment. With evenhanded attention to primary sources, The Original Meaning of the Fourteenth Amendment shows how the principles of the Declaration eventually came to modify the Constitution and proposes workable doctrines for implementing the key provisions of Section 1 of the Fourteenth Amendment.

Our Constitution speaks in general terms of liberty and property, of the privileges and immunities of citizens, and of the equal protection of the laws--open-ended phrases that seem to invite readers to reflect in them their own visions and agendas. Yet, recognizing that the Constitution cannot be merely what its interpreters wish it to be, this volume's authors draw on literary and mathematical analogies to explore how the fundamental charter of American government should be construed today.