Cover

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pp. 1-1

Title Page, Copyright

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pp. 2-5

Contents

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pp. v-vi

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Constitution of the United States

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pp. vii-viii

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ...

Contributors and Acknowledgments

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pp. ix-x

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Introduction

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pp. 1-8

The 14th Amendment embodies hope. An outgrowth of the Civil War and its aftermath, the Amendment profoundly reconstituted “the People of the United States” and redefined what it meant “to form a more perfect Union, establish Justice, insure domestic Tranquility . . . promote the general Welfare, and secure the Blessings of Liberty.”1 ...

Part I. Infinite Hope: The Framers as First Interpreters

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1. The Antebellum Political Background of the 14th Amendment

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pp. 11-34

For the viability of a progressive American constitutionalism, no question of meaning is more important than that of the 14th Amendment. Much of American constitutional law, at least that part of it that concerns individual rights, consists of a series of footnotes to the 14th Amendment.1 ...

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2. The Historical Context of the 14th Amendment

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pp. 35-55

In the mid-twentieth century, the 14th Amendment emerged as a central, indeed the central, provision in our constitutional jurisprudence. In the last half-century or so, Section 1 of the Amendment has been the driving engine of the judicial expansion of civil rights and civil liberties. ...

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3. The 39th Congress (1865–1867) and the 14th Amendment: Some Preliminary Perspectives

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pp. 56-73

The 14th Amendment is a very critical part of our distribution of government powers and the framework for protecting the rights of citizens. It has been considered by some to be a second founding and has been called by others a second U.S. Constitution.1 In the work of interpretation, the courts frequently look to the legislative history of the Amendment, ...

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4. The Union as It Wasn’t and the Constitution as It Isn’t: Section 5 and Altering the Balance of Powers

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pp. 74-94

The original draft of Section 1 of the 14th Amendment, as introduced by its primary framer, John Bingham of Ohio, read: “The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, ...

Part II. Finite Disappointment: The Supreme Court as First Interpreter

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5. Justice Miller’s Reconstruction: The Slaughter-House Cases, Health Codes, and Civil Rights in New Orleans, 1861–1873

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pp. 97-118

Few decisions by the United States Supreme Court have been more criticized than the Slaughter-House Cases1, the first case in which the Supreme Court interpreted the 14th Amendment. Of the Court’s nineteenth-century opinions, only Dred Scott v. Sandford and Plessy v. Ferguson have been more vigorously attacked by historians and legal scholars. ...

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6. Rebuilding the Slaughter-House: The Cases’ Support for Civil Rights

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pp. 119-138

The Slaughter-House Cases1 have a bad reputation for good reason. Justice Miller’s narrow reading of the Privileges or Immunities Clause was used to prevent the federal government from adequately protecting African Americans after the Civil War. Further, his opinion for the Court significantly delayed the application of the Bill of Rights to the states.2 ...

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7. Why “Privileges or Immunities”?: An Explanation of the Framers’ Interpretation and the Supreme Court’s Misinterpretation

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pp. 139-150

In the Slaughter-House Cases, Justice Field accused the majority of turning the 14th Amendment’s Privileges or Immunities Clause into a “vain and idle enactment which accomplished nothing,” and Justice Swayne argued that the majority “turn[ed] . . . what was meant for bread into a stone.” Most contemporary commentators appear to agree. ...

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8. The Legacy of Slaughter-House, Bradwell, and Cruikshank in Constitutional Interpretation

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pp. 151-166

The Slaughter-House Cases, Bradwell v. Illinois, and Cruikshank v. United States, all decided between 1873 and 1876, were the first cases in which the Supreme Court interpreted the 14th Amendment. The reasoning and holdings of the Supreme Court in those cases have affected constitutional interpretation in ways which are both profound and unfortunate. ...

Part III. Never Losing Infinite Hope: The People as First Interpreters

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9. The Use of the 14th Amendment by Salmon P. Chase in the Trial of Jefferson Davis

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pp. 169-189

The 14th Amendment to the United States Constitution has been, since its inception in post Civil War America, the subject of controversy and debate. To legal scholars it is a “second American Constitution,” the Amendment that altered the fundamental nature of federalism. ...

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10. “Horror of a Woman”: Myra Bradwell, the 14th Amendment, and the Gendered Origins of Sociological Jurisprudence

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pp. 190-213

On June 14, 1873, Myra Bradwell reprinted a short article from the St. Louis Republican in the Chicago Legal News announcing the U.S. Supreme Court’s decision in her case. The article glossed over the import of the Supreme Court’s interpretation of the new 14th Amendment and focused instead on the Illinois court’s underlying decision to deny women the right to practice law. ...

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11. 14th Amendment Citizenship and the Reconstruction-Era Black Public Sphere

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pp. 214-236

Consider the first sentence of Section 1 of the 14th Amendment. The nonlegal reader might quite reasonably say that such an introductory and framing sentence indicates that the Amendment is about citizenship. Such a reading would be reinforced by moving to the second sentence, ...

Endnotes

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pp. 237-298

Index

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pp. 299-301