Legal Commentary

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

By Randy Barnett

In honor of Lysander Spoooner?s birthday, I am pleased to make available on SSRN my new paper, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, which I have been researching and writing for over a year. In it, I discuss 13 abolitionists who made important constitutional arguments on various aspects of slavery (in chronological order): Theodore Dwight Weld, Alvan Stewart, Lysander Spooner, Charles Dexter Cleveland, William Goodell, Salmon P. Chase, James G. Birney, Joel Tiffany, Horace Mann, Gerrit Smith, Lewis Tappan, Byron Paine, and Frederick Douglass. I then discuss three speeches given by Representative John Bingham, a principal author of Section One, in the 1850s in which he uses these abolitionist arguments providing a direct link between abolitionist constitutionalism and the Fourteenth Amendment.

Here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the ?radical? Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about ?carpetbaggers? than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek, Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court?s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came.

Download it here.

UPDATE: I think something may have been wrong with the SSRN page. If so, I believe it is fixed now. If you were unable to access, please try again.

FURTHER UPDATE: While downloads are happening, some still report lack of access to SSRN. I do not know how to fix this since I have access. I may post a reminder in a few days so people can try again.

Full post as published by The Volokh Conspiracy on January 19, 2010 (boomark / email).