Vol. 34 No. 04 (July 2024) pp. 44-47THE SECOND FOUNDING: AN INTRODUCTION TO THE FOURTEENTH AMENDMENT, by Ilan Wurman. New York: Cambridge University Press, 2020. pp188. Paperback $20.99. ISBN: 978-1-108-82395-1. Online $20.99 ISBN: 978-1-108-91495-6.
Reviewed by Staci L. Beavers. Department of Political Science, California State University San Marcos. Email: sbeavers@csusm.edu.
While perhaps not a sequel in Marvel fans’ sense of the term, Ilan Wurman’s The Second Founding: An Introduction To The Fourteenth Amendment follows up on his first book, published in 2017. Legal scholar Wurman wrote A Debt Against The Living: An Introduction To Originalism “to introduce originalism to a broader audience” through acquainting readers with prominent originalist-oriented scholarship (p. 4). This time Wurman turns the reader’s attention to originalist debates over the Fourteenth Amendment to “explain[] the debates, provide[] the best arguments of the various sides, and then offer[] [his] own position” (p. 4) on the original meaning of critical components within Section 1 of the amendment. More broadly, he aspires to demonstrate that, given its emphasis on non-discrimination, “[t]he original meaning of the 14th amendment is not scary” (p. 144). While his success with this latter goal is debatable, Wurman pulls together a great overview of prominent originalist scholarship and historical context that provides a thought-provoking potential alternative to polarized takes on the amendment’s application in civil liberties and civil rights cases.
While attending to Section 1’s birthright citizenship provision along the way, Wurman’s points of focus are the intended meanings of the Fourteenth Amendment’s Due Process, Equal Protection, and Privileges or Immunities Clauses, respectively. The book follows a clear path laid out in its Introduction. Part One walks the reader through Wurman’s originalist takes on these respective clauses, informed by antebellum law and prominent legal writings available prior to the amendment’s drafting. Part Two lays out the historical context that provided the impetus for the drafting of the amendment, while Part Three applies Wurman’s interpretations to several past Supreme Court decisions to see how they might play out under his reading of the clauses. In the course of his assessments, Wurman provides a good overview of debates within prominent originalist scholarship. Keeping his take on the amendment firmly within the bounds of originalism, Wurman seeks a third way between a very constraining originalism and what he sees as the unrestrained discretion of the Supreme Court throughout much of the last several decades. Overall, he views these three key clauses as “sufficiently capacious to apply to new and important contexts, but not so capacious as to be open-ended invitations to judges to import their own extratextual values into the constitution” (p. 4).
Eschewing heavy reliance on the legislative history of the amendment’s journey through Congress, Wurman turns instead to pre-American Revolution English and early American legal scholarship, precedents, and other publicly available writings that preceded the Fourteenth Amendment’s drafting. He partners this legal context with a brief overview of the political, legal, and social conditions that spurred Congress to put the amendment to the states. This context includes Black Codes and denials of citizenship and other basic rights to Black persons as well as rampant broaches of basic expression rights and violent terror campaigns inflicted on abolitionists as well as African Americans. He concludes that the established focus of the amendment was discrimination and unequal treatment of Black persons within the U.S. as well as others who advocated on their behalf (pp. 90-91).
Though Chapter 7 demonstrates that Wurman’s interpretations could retain a number of important rights-protecting SCOTUS case outcomes, Wurman’s reading of these key Fourteenth Amendment protections would transform their meanings as applied by the Supreme Court. Rejecting any “‘substantive’” (p. 9) aspect to the Fourteenth Amendment’s Due Process Clause as well as any incorporation of federal rights protections against the states, Wurman’s marshaling of the evidence asserts that this clause required “only that no person could be deprived of life, liberty, or property except according to preexisting, standing laws, and violations of those laws had to be adjudicated according to certain common-law or statutorily established judicial procedures” (p. 16). His read of the Equal Protection Clause would also narrow its scope, providing only for “requir[ing] government to protect. . .rights from private interference” (p . 36, emphasis in original). Though separate, Wurman argues that these two clauses are closely intertwined: Together, the clauses provide “that whatever liberty and property interests exist according to law, the government must ensure that we may enjoy those rights and interests free of private interference and free of arbitrary deprivation by the government” (p. 42). Despite Wurman’s efforts to allay their concerns, advocates of robust substantive due process and equal protection rulings may still be alarmed at his take. Whether taken together or separately, his findings would leave the authority to “define” rights (p. 42, emphasis in original) to the states themselves.
Moreover, Wurman’s reading of the Privileges or Immunities Clause would not alter this balance of authority. Chapter 7 reviews the Supreme Court’s quick work of knee-capping the Privileges or Immunities Clause with The Slaughterhouse Cases (1873). He asserts that overly broad interpretations of the Due Process and Equal Protection Clauses resulted from the Court’s effort to correct (or over-correct) its mistreatment of the Privileges or Immunities Clause. While allowing the Privileges or Immunities Clause more heft than has the Supreme Court, Wurman assesses it solely as “an antidiscrimination provision” (p. 63) that would provide for equal treatment within a state. The landscape of civil liberties protections would still be determined by each state’s own constitution and other internal laws (p. 63).
While a quite different take from what the Court has brought to bear through the Due Process and Equal Protection Clauses, Wurman asserts the amendment’s extraordinary significance. As he summarizes: the amendment’s key clauses “impose certain fundamental equality provisions upon the state governments and allow both the courts and Congress to enforce these requirements” (p. 102). Further, “whatever privileges and immunities a state accorded some of its citizens, it had to accord to all equally without arbitrary discrimination” (p. 102).
His assessment of these key clauses complete, Wurman briefly re-envisions the amendment’s potential impact. To illustrate that an originalist view of the Fourteenth Amendment need not be “scary” (p. 144), Wurman applies his take to a number of precedents that may be widely feared to be doomed under an originalist recasting by the Supreme Court. For example, Wurman’s analysis determines confidently that the end result of Brown v. Board of Education (1954) would likely remain standing under his interpretations of the amendment (p. 132). Further, he sees a “plausible” path to upholding the end result of 2015’s Obergefell v. Hodges (p. 132). But while Wurman endeavors to assuage civil libertarian concerns over an originalist death blow to incorporation by reviewing scholarship that notes the comparability of most states’ constitutional civil liberties protections with the federal Bill of Rights (p. 64), advocates of robust substantive due process and equal protection approaches will likely remain wary. Such advocates could point to the speed with which numerous states have imposed new abortion restrictions and bans since Roe v. Wade’s (1973) demise to demonstrate the impact of the states’ discretion. Those whose rights are most at risk with an originalist re-casting of the amendment may well take issue with others’ determinations of how “scary” (p. 144) such an approach is.
While Wurman seeks to provide an “introduction” (p. 4) to the Fourteenth Amendment’s Section 1, I was occasionally not clear about his intended audience. Without question, Wurman packs a lot into this brief work; footnotes included, the book comes in at just 185 pages. For those already interested in constitutional debates and with some background under their belts, this book is a terrific overview of originalist literature on the Fourteenth Amendment that provides opportunities to apply the author’s conclusions to various existing precedents. For these readers, the last chapter in particular would provide great fodder for intriguing debates. I also very much appreciated Wurman’s weaving together of English Common law and Parliamentary legislation with both state and American federal caselaw and prominent writings preceding the Civil War to provide a background on antebellum law and thought. But for those without much existing background in English law or the treatises of such scholars as William Blackstone, this work may still be challenging. On the other hand, the detailed and substantive footnotes make clear how much more dense the text could have been, and they are available for readers who wish to dig deeper still.
While perhaps a bit much for those without any prior background on the topic and uncertain to alleviate the concerns who oppose or even fear an originalist approach to the Constitution, the book is a thought-provoking read. I very much appreciated Wurman’s effort to forge an alternative path between polarized (and polarizing) takes on the amendment.
CASES:
Brown v. Bd. of Ed., 347 US 483 (1954).
Obergefell v. Hodges, 567 U.S. 644 (2015).
Roe v. Wade, 410 U.S. 113 (1973).
Slaughterhouse Cases, 83 U.S. 36 (1873).
REFERENCES:
Wurman, Ilan. 2017. A Debt Against The Living: An Introduction To Originalism. New York: Cambridge University Press.
© Copyright 2024 by author, Staci L. Beavers.
