Constitutional Law

New article by Randy Barnett

"Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment."

It explores the many ways in which abolitionist legal thought influenced the 14th Amendment. The leadership of the 39th Congress were abolitionists to a man, and shared legal understandings that did not require explanation. We went into some of these in the Academics for the Second Amendment brief. For example, abolitionists had argued that Article IV's requirement that States turn over fugitive slaves was clear, but not legally enforceable. A State was bound by it, but no other entitle could sue to enforce the duty. To our eyes, members of the 39th Congress who argued that (1) another provision of Article IV, the privileges and immunities clause, bound the States to observe the Federal bill of rights but (2) we need a new amendment to ensure this, seem inconsistent. But to an abolitionist in 1866, there was nothing inconsistent at all.

Full post as published by Of Arms and the Law on January 20, 2010 (boomark / email).