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===Passage===

===Passage===

The Passage of the Fourteenth Amendment as a Constitutional Moment

The Passage of the Fourteenth Amendment as a Constitutional Moment

Passed in the heat of the Reconstruction period after the Civil War, the Fourteenth Amendment was only shortly debated in Congress.  In fact, after the long debate on the first of the [[Civil Rights Act]], few were willing to debate the Amendment for long.  Other strange circumstances surrounded the passage of the Amendment; notably, its ratification was rescinded by a few Northern states shortly after passage, and ratification was secured only by compulsion in the Southern states.  This has led to scholarly speculation about the "legality" of the Fourteenth Amendment.  While the subject continues to be debated in academic circles, though, the argument's practical validity has declined sharply: it is an integral part of America's constitutional framework, as it stands, and encompasses the most frequently litigated causes of action today.  To call it illegal, and end its domain, would be to tear down 1/2 of American constitutional law.  Further, a general historical consensus advocated by legal academia is that the Amendment was passed in a [[Constitutional Moment]] - i.e., a period of crisis when the state of affairs justifies a suspension of standard procedural rules, and instead, the country takes stock of its base morals in an extralegal, but moral, sense.<ref>Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. 115</ref>

Passed in the heat of the Reconstruction period after the Civil War, the Fourteenth Amendment was only shortlerdgffffffffhese “framers,” it is argued, should be given controlling meaning.  This reading became widely popular after the [[Brown v. Board of Education]] of Topeka, Kansas decision, which suggested that Fourteenth Amendment case law must be re-evaluated by modern norms.<ref>Brown v. Board of Education of Kansas, 347 U.S. 483, herinafter “Brown”</ref>  Thus, “framer’s intent” of the Fourteenth Amendment becomes a more dynamic issue than “framer’s intent” in most other amendments, which is argued as being frozen in time.

 

 

The history of the construction of the Fourteenth Amendment is as varied as was each period of [[United States]] history in which it has been used.  Truly, its construction has changed from the broad, to the narrow, and back again several times.  Current jurisprudence construes the Amendment broadly, and it is argued that this is inconsistent with the narrow “framer’s intent” of the [[Reconstruction Congress]].  However, several prominent legal scholars argue that the true “framer’s intent” of the Fourteenth Amendment was not to set its construction squarely in time in the 1860s, but rather, that the framers deliberately intended the Amendment’s application to vary and expand with time.  These scholars couch their interpretation in legislative history, where [[Radical Republicans]] on the Senate floor made many concessions to conservative Southern Democrats on the theoretical construction of the Fourteenth Amendment, but also deliberately switched from a narrow “civil-rights only” phraseology to a broader, generalist draft text of the Amendment, that eventually became law.<ref>Brest, Levinson, et al., “Processes in Constitutional Decisionmaking: Cases & Materials,” 5th Edition (Aspen Publications, 2006)  898-925.</ref>  The intent of these “framers,” it is argued, should be given controlling meaning.  This reading became widely popular after the [[Brown v. Board of Education]] of Topeka, Kansas decision, which suggested that Fourteenth Amendment case law must be re-evaluated by modern norms.<ref>Brown v. Board of Education of Kansas, 347 U.S. 483, herinafter “Brown”</ref>  Thus, “framer’s intent” of the Fourteenth Amendment becomes a more dynamic issue than “framer’s intent” in most other amendments, which is argued as being frozen in time.

===Different Prongs of the Fourteenth Amendment===

===Different Prongs of the Fourteenth Amendment===

The Amendment is litigated under three different substantive prongs: the [[due process clause]], the [[equal protection clause]], and the [[privileges and immunities clause]].   

The Amendment is litigated under three different substantive prongs: the [[due process clause]], the [[equal protection clause]], and the [[privileges and immunities clause]].   

The “privileges & immunities clause” urges that the states cannot abridge those privileges that come with national citizenship.  The clause has largely been “drained” of meaning.<ref>See Brest & Levinson, supra</ref>  The [[Slaughterhouse Cases]] were largely responsible for this, as this case line limited the “privileges & immunities” that state citizens are entitled to very sharply indeed, and placing anything other than civil rights (even political rights) in the exclusive control of the states.  While this understanding has been largely abrogated, the clause is still rarely invoked, absent a brief 1999 revival.<ref>the Slaughterhouse Cases, 83 U.S. 36, and Sans v. Roe.</ref>  However, it is read to import the restrictions imposed upon the federal government by the [[Bill of Rights]], onto the state governments.

The “privileges & immunities clause” urges that the states cannot abridge those privileges that come with national citizenshdfevinson, supra</ref>  The [[Slaughterhouse Cases]] were largely responsible for this, as this case line limited the “privileges & immunities” that state citizens are entitled to very sharply indeed, and placing anything other than civil rights (even political rights) in the exclusive control of the states.  While this understanding has been largely abrogated, the clause is still rarely invoked, absent a brief 1999 revival.<ref>the Slaughterhouse Cases, 83 U.S. 36, and Sans v. Roe.</ref>  However, it is read to import the restrictions imposed upon the federal government by the [[Bill of Rights]], onto the state governments.

Contrary to the privileges & immunities clause, the equal protection clause is a clause basic to modern segregation law, and law in general.  The clause was invoked in the justly reviled case [[Plessy v. Ferguson]], which held that while blacks and whites do deserve equal protection under this clause, segregation into “separate-but-equal” facilities do not abridge the right, and in fact preserve the public interest by separating the races, to the benefit of all.<ref>Plessy v. Ferguson, 163 U.S. 537</ref>  Under this case, “equal protection” was narrowly construed to serve a racist end.  However, the equal protection doctrine was vindicated by the landmark case Brown v. Board, which required that equality is never served by segregation, and as always, our Constitution demands equality.<ref>Brown, supra</ref>  This lauded declaration of the equal rights of mankind came only after a vigorous legal struggle, led by the [[NAACP]] and [[Thurgood Marshall]], who systematically tore down in court the conception that separate could ever be equal.<ref>see, e.g., Sweatt v. Painter (339 U.S. 629), see also Brest & Levinson, supra</ref>  Since this revival, the equal protection clause has underpinned many other significant civil rights advances, especially in state law jurisprudence.   

Contrary to the privileges & immunities clause, the equal protection clause is a clause basic to modern segregation law, and law in general.  The clause was invoked in the justly reviled case [[Plessy v. Ferguson]], which held that while blacks and whites do deserve equal protection under this clause, segregation into “separate-but-equal” facilities do not abridge the right, and in fact preserve the public interest by separating the races, to the benefit of all.<ref>Plessy v. Ferguson, 163 U.S. 537</ref>  Under this case, “equal protection” was narrowly construed to serve a racist end.  However, the equal protection doctrine was vindicated by the landmark case Brown v. Board, which required that equality is never served by segregation, and as always, our Constitution demands equality.<ref>Brown, supra</ref>  This lauded declaration of the equal rights of mankind came only after a vigorous legal struggle, led by the [[NAACP]] and [[Thurgood Marshall]], who systematically tore down in court the conception that separate could ever be equal.<ref>see, e.g., Sweatt v. Painter (339 U.S. 629), see also Brest & Levinson, supra</ref>  Since this revival, the equal protection clause has underpinned many other significant civil rights advances, especially in state law jurisprudence.