The Contested Legacy of the Fourteenth Amendment

The Fourteenth Amendment has proven to be one of the most difficult parts of the Constitution to interpret. For over a century, controversy has swirled over how exactly the Due Process, Privileges or Immunities, and Equal Protection clauses limit the policies of states. That uncertainty hasn’t stopped the Supreme Court from viewing it as one of the most sweeping and transformative amendments. Randy Barnett and Evan Bernick have recently written an important new book on the Amendment, arguing that while the Court has mostly gotten the original meaning of the Amendment wrong, it has nevertheless stumbled into many correct outcomes. We asked four Law & Liberty contributors to weigh in on their interpretation.

“Law,” “Citizens,” and 1868

Christopher R. Green

A Radical Original Meaning

Julia D. Mahoney

Another Original Meaning of the Fourteenth Amendment

Jesse R. Merriam

From Comity to Equality

Ilan Wurman

A Reply to Our Critics

Randy E. Barnett and Evan D. Bernick

Further Disucssion

Does the Fourteenth Amendment Destroy Federalism?

Donald Devine


FRIEDRICH VON HAYEK 1981 Austrian economics and political philosopher in Gothenburg

Was Hayek an Originalist?

Hayek was an originalist of a certain sort, one who favored an original meaning based on the words of the Constitution and the enactors' intent.