Academic

Epps on Interpreting the 14th Amendment

By Lawrence Solum

Garrett Epps (University of Baltimore School of Law) has posted Interpreting the Fourteenth Amendment: Two Don'ts and Three Dos (William & Mary Bill of Rights, Vol. 16, No. 2, 2007) on SSRN.  Here is the abstract:

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North and the South, and of Southern Unionists and Northern migrants in the former Confederacy. The second misconception is that the central purpose of the Amendment was to "constitutionalize" the Civil Rights Act of 1866, and that section 1 can thus be interpreted as chiefly incorporating the short list of basic civil rights protected by that Act. Both the legislative record and the statements by the Amendment's sponsors during the debate over its framing demonstrate that the Amendment was an independent measure aimed at a much broader set of reforms in state institutions. The author suggests that the record does support three positive statements about the Amendment. The first is that the Amendment was aimed at addressing systemic flaws in the Constitution of 1787. The second proposition builds on the first by suggesting that the major flaw the framers saw in the original Constitution was its empowerment of a complex political and social institution widely known to antebellum thinkers as the "Slave Power," a set of privileges for slavery that had permitted the slave states to dominate the federal government since at least 1800. The last proposition is that the Amendment, having been forged during an intense struggle between the executive and legislative branches, had as one of its aims to empower Congress, and that current jurisprudence that reads it as primarily concerned with empowering the federal courts misconceives the historical context from which it emerged. Finally, the author suggests that the broad political focus of the Amendment invites current interpretations that draw on political theory about the requirements of a genuinely democratic system, and that one such theory is the idea of the "open society" proposed during the mid-twentieth century by the influential philosopher Karl Popper.

And from the text:

The inevitable assumption of provisionally discernible intent, however, is not identical with the constitutional claim of an ?originalist? method?that is, with the claim that there exists some dependable mechanism for discerning the overriding, singular ?intent? of a group of people that can be meaningfully applied to produce reproducible, falsifiable, dispositive answers.  That?s true even when the specific questions relate to matters the legislators or framers actually may have thought about; when they relate to matters that did not exist at the time of the framing?say, the citizenship of children of ?illegal aliens? or free expression on the Internet?the question becomes incoherent.  While one may think about the Fourteenth Amendment in terms of intentions, ?original intent? in the sense proposed by ?originalists? cannot be discovered by any intelligible method.

Of course, "new originalists" will agree with Epps that "intentions" do not provide the linguistic meaning (or semantic content) of the constitutional text.  Interesting and worth reading.

Full post as published by Legal Theory Blog on December 31, 2008 (boomark / email).