Wednesday, August 20, 2014

New Paper on the Fourteenth Amendment.

Mark Graber

I have just posted "Constructing Constitutional Politics: Thaddeus Stevens, John Bingham and the Forgotten Fourteenth Amendment" on SSRN.  The abstract of the paper is as follows:

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.
If my analysis is correct, Section 1 of the Fourteenth Amendment had no original meaning.  More to the point, we ought to understand the Fourteenth Amendment as an attempt to construct rather than to constrain politics.  Needless to say, I welcome all comments and suggestions.

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