The Original Understanding of the Fourteenth Amendment in Illinois, Ohio, and Pennsylvania

The fourteenth amendment is a second American Constitution, the new birth of freedom for which Lincoln had prayed at Gettysburg. It nationalized the protection of civil liberty and thereby revolutionized the structure of American government. In the three great clauses of its first section it guarantees the privileges and immunities of citizenship, the equal protection of the laws, and due process of law. These guarantees are the bedrock upon which the American regime of individual liberty rests. Stated as principles, these guarantees presumably embodied a particular view of man and his relationship to government. The nature of that view is of more than antiquarian interest because it should inform contemporary interpretation of those guarantees. Indeed, litigants frequently invoke, and courts frequently cite, the original understanding. These invocations and citations do not, however, reflect any consensus about the original understanding. In search of the original understanding lawyers and judges have mined many sources but have left untapped one major vein: the state ratification debates. This article reviews the state ratification debates in Pennsylvania, Ohio, and Illinois. Then as now these states were major electoral battlegrounds. In all three states the two parties fielded strong candidates and ran well-organized campaigns. Many of the nationally recognized proponents of the 14th amendment hailed from these states. Those among them who faced re-election were marked men. President Johnson himself made his famous “swing around the circle, defending My Policy in major cities in all three states. The President was only the most prominent of the many well-known outsiders who crisscrossed these states in a desperate attempt to influence the decision. Throughout the summer and fall of 1866 this debate riveted the public\u27s attention on the single issue of ratification