fourteenth amendment and introduction and overview

Over a century ago, a prominent judge wrote that it was "almost daily, in the federal and state courts, that the Fourteenth Amendment..[was] appealed to...The supreme importance of that Amendment [was] at once evident in theory and practice" (cited in Nelson, The Fourteenth Amendment, 1). The progress of the twentieth century would not only not qualify that statement but would intensify it. Apart from the First Amendment to the Federal Constitution, and maybe even more than the First Amendment, the Fourteenth Amendment dominated twentieth century jurisprudence. But, it is not simply the Fourteenth Amendment, writ large, that has shaped legal thinking since its ratification in 1868, but rather two clauses in that Amendment (the "due process" and "equal protection" clauses) that have bulked so huge. Hundreds of cases have been decided under those clauses, and their importance shows no signs of abating.

But what is peculiarly absent both in the law school classroom and the current debates over the 14th Amendment is attention to the context in which it was created. On the one hand, everyone knows vaguely that it came out of the aftermath of the Civil War. On the other hand, the intricate relations among social, political and legal issues in that decade or so which scholars call Reconstruction (Erich Foner's book Reconstruction covers 1863-1877) is known by very few. Yet, it was in this crucible that several crucial statutes and the 14th Amendment itself were forged. Attention both to the tenor of the times and the language and process of adoption of the 14th Amendment, therefore, should not only enrich our understanding of the United States Constitution, but should also challenge us to see law and its relationship to the realities of American life differently. A recent law syposium, published as 13 Temple Political & Civil Rights Law Review 385-973 (2004) redresses the aforementioned lack to a degree, though only a few essays are devoted to historical themes.

This page is intended for three types of people: law students, attorneys and those with an interest in United States history. I would be flattered to think that 14th Amendment specialists will find something here to stimulate their thinking, too, though the primary focus of this page is for those who are coming upon this material for the first time. In keeping with my approach to web writing, I present here essays which are no longer than about 1200 words on a variety of topics that help give a fully-developed understanding of the 14th Amendment's early history. I believe this is the most detailed consideration of the 14th Amendment to be found on the Internet to date; I would be interested to hear from you if you have corrections, comments or other topics that you think ought to be considered.

How to Use This Page

When this page is complete, sometime late in the Fall 2005 (I hope), it should consist of between 60-70 essays on some aspect of the history of the Fourteenth Amendment. I have tried to arrange the essays in the column on the left in a logical order, so that if you simply want a rather chronological and textual introduction to the Amendment, you can start at the top and click away! All of the essays, however, are written independently of each other and stand on their own (except, of course, where I have a multi-part essay on one theme), so that if your interest is simply in Black Codes, for example, all you need do is click on the link on the left. Often I direct you to, or mention, other sources if you want to pursue things in more depth. My overall philosophy, however, is that legal language and law is best understood if you take the time to understand the times that generated the thought that led to the langauge that, in this case, is captured in the Amendment.

A Word of Explanation

I would like to mention, however, that the historical essays I present for you are not simply three or four-page excerpts of history books. Each one of them could be greatly expanded into term papers or much longer works. In addition, I often treat a subject from a perspective that will not normally be presented in standard historical surveys. For example, all scholars point out that one of the crucial issues underlying the debates over the 14th Amendment was the problem of how the South would be represented in Congress after the War. Instead of just laying out the problem or simply pointing to Sec. 2 of the Amendment, where the issue is treated, I try to get behind the issue by examining the speech on the issue by one of one of the chairmen of the Joint Committee on Reconstruction, Thaddeus Stevens of PA, a speech that is preserved in the Congressional Globe (the leading publication in the mid-19th century to give us "verbatims" of Congressional debate). Or, when considering some of the legal issues involved in ratification, I have decided to present three essays on Charles Sumner, one of the leading Senators of his day, that brings out not simply his approach to "Negro" rights but also his personality and personal history. Thus, my hope is that you find these essays engaging as well as informative, and that your interest is thereby whetted to ask more thorough questions of whatever it is you study.

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