Original Intent and the Fourteenth Amendment: Into the Black Hole of Constitutional Law

This article explores and examines William E. Nelson’s masterful study of the origins and adoption of the Fourteenth Amendment, The Fourteenth Amendment: From Political Principal to Judicial Doctrine (1988). The article explains that a quarter of a century after he wrote this book, Nelson’s study of the origins and adoption of the Amendment remains the best exploration of these issues. His book illustrates the difficulties of determining the “original intent” of the framers of this complicated and complex Amendment. At the same time, however, Nelson demonstrates that for many issues we can come to a strong understanding of the goals of the framers and ratifiers, even as we cannot reach such firm conclusions for other aspects of the Amendment. This article takes issue with the last part of Nelson’s book, arguing that he should have looked more closely at the Supreme Court’s jurisprudence on race, and offered a more critical analysis of this jurisprudence. The article suggests that in his analysis of these cases Nelson was too lawyerly, and thus ignores the pernicious results of these cases and also ignores the fact that a contrary jurisprudence of equality was available to the Court, had the Justices chosen to favor equality over inequality. This article ends by arguing that the Court did not have to take this direction because at the very time the Court’s majority supported segregation, most northern states passed laws to protect civil rights. This forgotten history of northern civil rights legislation suggests that there was significant support in the nation for rejecting segregation in favor of equality. Unfortunately, the Supreme Court rejected the equality supported by a majority of the nation in favor of segregations and racism, which commanded the support of a minority of the nation—southern whites