Barnett posts Monumental Article on Original Meaning of Section 1 of the 14th Amendment. Read it.

January 19th, 2010

In honor of Lysander Spooner’s birthday, Randy Barnett just posted what looks to be a game-changing article on the original meaning of Section 1 of the 14th Amendment. I know Randy has been working on this paper forever, and he discussed it briefly when we hosted him at Mason last year.

Here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek, Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came.

I’ll post some more thoughts as I read it.

I just skimmed, quickly through Randy’s article, focusing on discussion of the right to keep and bear arms in the context of the privileges or immunities clause.

In addition to these privileges, Tiffany implies the existence of certain
unenumerated immunities. Implied by the enumerated right to keep and bear
arms—which Tiffany characterized as one of the “immunities of a citizen of the
United States”—is the natural right of self-defense.286 The right to arms is
“‘subordinate’ in reference to the great, absolute rights of man; and is accorded to
every subject for the purpose of protecting and defending himself, if need be, in the
enjoyment of his absolute rights to life, liberty and property.”287

The implied right of self-defense, in turn, “also implies that the citizen has a
right to himself that is to his own personal security, liberty, property, &c.,—all of
which is herein and hereby guaranteed.”288 The right to personal security, liberty and
property is also implied by Fourth Amendment’s express injunction that “‘the right
of the people to be secure in their persons,’ &c., ‘shall not be violated;’ ‘and no
warrants shall be issued but upon probable cause, supported by oath, or affirmation,
and particularly describing the person to be seized.’”289 Nor are these “guaranties
of the people of the United States,” limited to citizens; they “are even held applicable
to those who are not citizens.”290 Tiffany concluded “that these guaranties, in the
Federal Constitution, were made for the express and only pupose, [sic] of securing
to every citizen full and perfect immunity in the enjoyment of his natural and
inalienable rights.”29

More thoughts later