Recently published, by Earl M. Maltz (Rutgers): The Myth of the Fourteenth Amendment and the Civil Rights Act of 1866 (16 ConLawNOW 41 (2025)). Here is the abstract:
Although legal scholars who focus on the original meaning of the Fourteenth Amendment disagree about many things, almost all agree that John Bingham proposed what was to become Section One of the amendment in order to definitively establish the constitutionality of the Civil Rights Act of 1866. In fact, however, the Joint Committee on Reconstruction chose to insert the Bingham formulation in place of a provision that would have explicitly constitutionalized the Civil Rights Act. This Essay describes the circumstances that provided the backdrop for the consideration of the Bingham proposal and the implications that this context has for our understanding of the original meaning of Section One.
The author has two earlier related articles, Rehabilitating the Slaughter-House Cases and Moving beyond Race: The Joint Committee on Reconstruction and the Drafting of the Fourteenth Amendment. Professor Maltz comments:
Each of the articles describes the forces that led to the inclusion of the final version of section one in the Fourteenth Amendment. However, the articles differ from most accounts of the decision to include the version of section one that was ultimately adopted in one crucial respect. While most commentators treat section one as if it had been proposed and ratified in isolation, these articles emphasize the fact that section one was simply one part of a multifaceted measure that was designed to describe the changes that Republicans believed were preconditions for the readmission of the former Confederate states and to provide a platform for Republican candidates in the upcoming elections of 1866.
This distinction is significant for a variety of reasons. For example, in discussing the evolution of the language of section one, commentators generally focus a great deal of attention on the differences between the formulation that was ultimately adopted and earlier versions that had been championed by John Bingham, who was the author of section one. However, they typically make little or no effort to provide an explanation for the decision to replace a provision that would have prohibited only racial discrimination with the current, race-neutral version of section one—a decision that ultimately provided the textual basis for much of modern constitutional doctrine and was particularly striking because the same committee had voted to remove the Bingham language from the proposed amendment only two days earlier. By contrast, the attached articles provide a coherent explanation for the crucial change in the formulation of section one by connecting the decision to reframe section one with an analogous decision to eliminate all references to race from section two of the proposed amendment, which changed the basis of representation for the House of Representatives. In addition, Rehabilitating The Slaughterhouse Cases in particular argues that the recognition that section one was simply part of a larger reconstruction plan should play an important role in the judicial interpretation of the scope of section one and, contrary to the position taken by most commentators, suggests that the majority had the better of the argument in The Slaughterhouse Cases.
Posted at 6:25 AM