Friday, February 15, 2019

Pino and Witt on the 14th Amendment

Lisset Marie Pino, a student at the Yale Law School, and John Fabian Witt, a professor at the Yale Law School, have posted The Fourteenth Amendment as an Ending: From Bayonet Justice to Paper Rights:
Since its enactment and ratification, savvy observers have viewed the Fourteenth Amendment as a vindication of the military experience of the Civil War. Bullets and bayonets in wartime led to peacetime citizenship in Section 1 of the Fourteenth Amendment and to peacetime ballots that were first protected in Section 2 of the Fourteenth Amendment and then bolstered in the Fifteenth Amendment. But there is another story to tell as well, one in which the Fourteenth Amendment is not the beginning of a new constitutional story, or at least not only the beginning of a new story, but also a betrayal and an ending. In important respects the Fourteenth Amendment helped to close out the righteous form of power that had emerged in the antebellum era as a solution to the glaring injustice of slavery. This crucial authority was the federal government’s war power. Stories of vindication and of new beginnings are not wrong. But they make it all too easy to miss the Fourteenth Amendment’s role as part of a complicated denouement of the wartime experience, one that embodied the war’s triumphs but also blunted their force and pace. The Fourteenth Amendment abandoned a vital chapter of American history even as it occasioned a new one whose results are still unfolding.