Journal Article

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

Randy E. Barnett

in Journal of Legal Analysis

Published on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School with the support of the Considine Family Foundation

Volume 3, issue 1, pages 165-263
Published in print January 2011 | ISSN: 2161-7201
Published online January 2011 | e-ISSN: 1946-5319 | DOI: http://dx.doi.org/10.1093/jla/3.1.165
Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment

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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 disparaged 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 know about the framers of the Fourteenth Amendment. Despite a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, abolitionist constitutionalism remains obscure to law professors and even to historians of abolitionism.

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, many of whom were instrumental in the formation of the Liberty, Free Soil, and Republican parties. 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 the forgotten writings of these “constitutional abolitionists,” 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

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Subjects: Jurisprudence and Philosophy of Law

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