The Fourteenth Amendment secured The Civil Rights Act against all counterarguments and against future repeal.
A careful examination of the Privileges or Immunities Clause shows what we lost 150 years ago.
How should originalists understand the 14th Amendment?
The Fourteenth Amendment's terms constitutionalize certain pieces of legislation, solving the antebellum and postbellum constitutional struggles.
At some point in time, the Supreme Court abandoned originalism, and prior originalist precedents, and came up with new law altogether.
The Framers, very cognizant of history, sought to frame a constitution that successfully balanced self-government and liberty.
The mistake that the Supreme Court makes is to presume that the answer to this specific question must be found in the Constitution.
Could executive branch agencies be turned into helpful adjuncts to federal courts without usurping judicial power? Yes they could.
On the rare occasion when the public meaning diverges from the legal meaning, the public meaning probably ought to prevail.
Ilan Wurman is an associate professor of law at the Sandra Day O’Connor College of Law, and the author of The Second Founding: An Introduction to the Fourteenth Amendment.