Saturday, November 8, 2008

Epps on The Antebellum Political Background of the 14th Amendment, and more

Garrett Epps, University of Baltimore School of Law, has posted an article, The Antebellum Political Background of the Fourteenth Amendment. It appeared in Law & Contemporary Problems (2004) . He has also posted on SSRN a lecture, Second Founding: The Story of the Fourteenth Amendment, and a speech on The Bill of Rights. Here's the article abstract:
Understanding the Fourteenth Amendment is the key question of Constitutional law, both as it pertains to individual rights and, in many areas, as it relates to questions of Congressional power as opposed to the reserved powers of the states. The Amendment is often disaggregated and read clause by clause - but the intellectual and political background of its framers suggests that the Amendment in fact forms a coherent whole and that reading it as a whole might be a fertile source of new meanings. The Amendment was written by politicians who had spent their careers deeply involved in anti-slavery politics. The political concepts developed by this movement are unfamiliar to most lawyers today. One such concept, richly documented by historians, is that of the Slave Power. The Slave Power, as used by mainstream anti-slavery politicians like Charles Sumner, William P. Fessenden and Thaddeus Stevens, referred to the institutions that had grown up under the original Constitution of 1789 to protect and advance the South's slave system. A glance at the writings of anti-slavery politicians is enough to suggest that in writing the Amendment they were taking aim at what they regarded as the key elements of the Slave Power - the overrrepresentation of slave states in Congress and the Electoral College, and the ability of the Southern states to suppress free debate and democratic political institutions within their borders. The individual rights guarantees of Section One, seen through this lens, are not a limited set of minimal rights but in fact seem designed as a broad charter of freedom for residents of all the states, with Section Five placing Congress squarely in control of the political progress at the state level.