At Dorf on Law, Eric Segall: A New (Read Old) And Improved 14th Amendment? (reviewing [more favorably than you'd expect] The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit," by Randy Barnett and Evan Bernick). From the introduction:
My major takeaway is that anyone interested in the circumstances surrounding the ratification of the 14th Amendment should read this book. This is not to say that either I, or certainly other scholars who have mined the same sources, will agree with all the conclusions that Barnett and Bernick reach. But the book is fascinating, accessible when necessary and sophisticated where appropriate, and most importantly, it does what books by law professors ought to do: it makes one think, reflect, and then re-examine core assumptions.
There is much too much content in the book for a blog post to do justice to all the covered ground. Here are some headlines that might surprise you and some that probably won't.
Before turning to their historical accounts, Barnett and Bernick provide a thumbnail sketch of their "letter and spirit" approach to constitutional interpretation. In their words, the letter of the law is "the meaning that it originally conveyed to the public." The spirit of the law "consists of the ends, purposes, goals, or objects that the [law] was adopted to accomplish–its design functions." Where the letter is clear, judges must follow it. Where it is not, judges should look to the spirit of the law, which the authors concede in many circumstances dealing with the Constitution, will lead to underdeterminacy. There, we find the famous New Originalism construction zone, and forests have been burned by legal scholars debating its contours.
I have discussed this "letter and spirit" approach at length before on this blog. My two main conclusions have not changed: virtually all of litigated constitutional law is in the construction zone, and if "spirit" is going to be our trump card over the specific expected applications of those who wrote, discussed, and ratified the text in question, then that approach is originalism in name only. Those criticisms are not relevant, however, to most, maybe all, of this book, and I do not want them to sidetrack people from appreciating the book.
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The authors use founding-era, more immediate pre-ratification, and post-ratification evidence to reach their conclusions regarding what the 14th Amendment originally meant. The stories they recount, the cases they describe, and the debates they summarize make for compelling reading. Anyone interested in constitutional debates from the Founding to the end of the 19th century will find much in this book to learn, digest, and think deeply about.
I am not a historian and therefore do not feel qualified to judge the authors' historical conclusions, which are at times quite surprising. I will summarize them below to possibly entice those reading this review to pick up the book….
Posted at 6:08 AM