Earl M. Maltz (Rutgers Law School) has posted The Entire Fourteenth Amendment (85 pages) on SSRN. Here is the abstract:
Discussions of the legislative history of the Fourteenth Amendment have almost uniformly focused on the background of section one. However, the recent debate about the proper interpretation of section three has reminded us that section one was in fact only one part of a multi-faceted measure that was designed to outline the conditions under which the states that had been part of the Confederacy would be allowed to regain their status as equal members of the United States. This article is the first to provide a comprehensive overview of the legislative history of the entire Fourteenth Amendment, including both section one and section three, as well as sections two and four.
The introduction states in part:
The article describes the evolution of the conflict between Andrew Johnson and mainstream Republicans over the issue of Reconstruction generally, as well as the disputes among the members of the Joint Committee on Reconstruction and the discussions of the proposals that emerged from that committee on the floor of the House of Representatives and the Senate. In addition, unlike most accounts, which characterize the proposal that was reported by the committee in late April as a modification of a five-part constitutional amendment initially proposed by Republican activist Robert Dale Owen, the article demonstrates that the measure that was ultimately reported was in fact a substitute for that plan and embodied the principles that were endorsed by New York Republicans at a meeting that took place shortly after the initial committee vote on the Owen proposal. The article also argues it was the embrace of the New York template that provided the impetus for the fateful decision to abandon a simple prohibition on race discrimination in favor of the race-blind formulation of section one that has provided the foundation for much of modern constitutional doctrine.
Posted at 6:18 AM