Fourteenth Amendment Originalism

Abstract

This essay, part of a symposium on Jack Balkin's Constitutional Redemption and Sanford Levinson's Constitutional Faith, seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions of incorporated rights, in affirmative action cases, and in federalism disputes, and yet originalist interventions into such discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent less usable history than the Founding for several reasons: the Reconstruction amendments were largely failures in their own time; the open-ended language of the Fourteenth Amendment is not well-suited to settlement of modern controversies; and the Reconstruction era holds an awkward and contested place within our national memory. These limitations are consistent with the notion that originalism in practice is as much an ethical as a hermeneutic project.