The Fourteenth Amendment is at the heart of many of the most controversial issues that will land before the Supreme Court today. In his new book, David Upham argues that many of the legal theories about it are not deeply rooted enough in the history or text of the amendment itself. He joins the Law Liberty Podcast to discuss.

　　Related Links Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment by David R. Upham

　　Transcript James Patterson (00:06):

　　Welcome to the Law Liberty Podcast. Im your host, James Patterson. Law Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law Liberty and this podcast are published by Liberty Fund.

　　Hello and welcome to the Law Liberty Podcast. My name is James Patterson, associate professor of public affairs at the Institute of American Civics at the University of Tennessee. With me today is Professor David Upham. He is professor of law at St. Thomas University College of Law. Today, well be talking to him about his new book, Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment on Bloomsbury Academic Press that just came out. Welcome, Professor Upham.

　　David Upham (01:13):

　　Thank you, Professor Patterson, and thank you very much for the opportunity to speak about my work, which Ive been working on for many decades. Liberty Fund and Law Liberty is a daily place for me to read whats going on in the world of the broad discussion of the state of our republic. And Im genuinely honored and I feel very privileged to be here. Thank you.

　　James Patterson (01:34):

　　Well, thats very generous. And honestly, the book is a real contribution to an area that you actually establish early in the text is quite crowded, which is the study of the Fourteenth Amendment. I think its something like why does the world need another Fourteenth Amendment book was a question you actually posed. I had to laugh at the level of consciousness about this. So why dont you answer that question for us?

　　David Upham (01:59):

　　Well, in some sense, the topic is as relevant as it has ever been, and more specifically the original understanding of the Fourteenth Amendment. A decade ago when I really started writing the book in earnest, we had just had the decision in Obergefell in which the Supreme Court had said the Fourteenth Amendment compels the states to extend the status, duties, and rights of marriage to same-sex couples. And although the court in that case did make originalist claims, those claims were so unsupported that I think itd be fair to say that Fourteenth Amendment originalism was at a nadir. It was the least relevant to our actual politics. So I said to myself, I need to publish this book just so I can unload my research and leave it for perhaps future generations if anyone should happen to stumble across this topic. But what happened in the last ten years in American politics and law has been, well, bewildering to many of us and complicated and nuanced, and the story itself will take, for that to be told in any objective way, it will take a future generation to do it because weve lived in it so much.

　　(03:08):

　　But for whatever reason, the Supreme Court today, all nine justices have taken to writing extensive and I think robust Fourteenth Amendment originalist opinions in a number of areas that have made it such that our discussions of the American Constitution with reference to things like affirmative action and the meaning of birthright citizenship have now made it such that the Fourteenth Amendment originalism is highly relevant. The second question is why a new book? Well, in part, I think many would say that there has not yet been a largely persuasive account. It does seem to be something of a cacophony of voices. And I believed perhaps with much hubris that I have something to say that isnt simply another set of cacophonous, another addition to the cacophony. One of the things is the book does include a large number of new sources that have either been not discussed or discussed only in fairly remote footnotes.

　　(04:12):

　　New drafts that were under discussion, newspaper articles contemporaneous with the liberations of the 39th Congress when they were drafting it, and also the ratification debates. I make a large number of interpretive claims about the evidence that are new. And I think I can say this without sounding too arrogant. I probably say nine out of ten of my things are just wrong, but one of the ten might be really valuable. And Im confident that some of the interpretations would be considered, if scholars engage with my work or just skim it, would say, okay, lets say eight out of ten is junk. Its obvious garbage, but two might help to address or move us forward to a genuine, what I would call a genuine consensus that can give rise to disagreement because disagreement is an achievement because it requires that the parties know the underlying terms. It has to be an underlying agreement and then you can reach disagreement, which incidentally I do think was the case in the recent Trump v. Slaughter, the birthright citizenship case.

　　(05:16):

　　Theres a lot of noise there, but the justices actually agreed on a lot of things that made for an interesting disagreement among the judges, common sources, some common premises. And so the goal of my book is not to create an exhaustive and definitive account, and now all times should fall silent because the Fourteenth Amendment is now understood. But I hope to give rise to contribute to what I would call disagreement rather than cacophony. So again, new sources, multiplicity of new observations, and at the very least an argument that we should not, in my first substantive chapter, we should not just throw up our hands and say, Well, it was deliberately ambiguous. People talking about it at the time didnt seem to be bewitched. They act and speak among themselves as if the supporters have a coherent account among themselves. And that alone should give rise to perhaps just a new assessment of the available evidence to try to find what that consensus was, even if I didnt find it.

　　James Patterson (06:17):

　　Yeah, theres a kind of contemporary account of what the Fourteenth Amendment is, but you have a chapter that goes over what you call the original official understanding, which pertained to a sort of meeting or a committee that talked about this language originally. So why dont we talk about that?

　　David Upham (06:38):

　　Sure. Well, the Fourteenth Amendments genealogy is fairly straightforward. There are three evils, at least three substantive evils, there are more, but three substantive evils in the unreconstructed South that need to be addressed according to the Republicans that dominated Congress before those 11 states could send representatives. The first of those evils is large scale lawless violence. There are lots of quasi-military, paramilitary organizations, beginnings of the Klan, but many others, that are operating with one might say the consent of the political power, which are Southern whites and largely formerly disloyal, and you could put formally perhaps in parentheses, disloyal Southern whites, which mean that the government is simply a failed state. They do not provide adequate security to person and property. And there are three groups that are particularly vulnerable, the freedmen, Southern loyalists, that is Southern Unionists, and Northerners. So theres just an absence of effective enforcement of laws against murder and arson and kidnapping that need to be addressed according to the Republicans who dominate.

　　(07:51):

　　The second is the existence of laws we today call them, and they were often called the “Black Codes” that were either made or at least not repealed by the Southern white governments upon emancipation by which freedmen were by promulgated laws, statutes, constitutional provisions subject to many disabilities, not just as to political rights, but also as to civil rights, rights to trade, rights to travel, rights to buy real estate, et cetera. And then third, theres what Im going to call the maldistribution of political power. With emancipation, the former slaves who constitute a majority or near majority in six of the 11 seceded states and a large minority in other states go from zero-fifths of a person to five-fifths of a person. So thats wonderful. Theyre freed and now the Southern states have more political power. But the persons who are entitled to vote in the South are Southern whites, and especially in those states where free Blacks were most numerous, they also happened to be the states where Southern white opinion had been overwhelmingly secessionist and disloyal.

　　(08:57):

　　So the disloyal, formerly pro-slavery Southern whites acquire more political power as a result of emancipation and the suffrage is reserved exclusively to them by the state constitutions. Now, from our perspective, the answer to that question would be fairly straightforward. Will we need a Fifteenth Amendment to simply say the former slaves will all be voting so that they will have a majority in South Carolina, Mississippi, and Louisiana, and a near majority in Georgia, Florida, and Alabama, the 45% to 50% states. A lot of Americans forget that the history of African-American politics is not a history simply of a disenfranchised minority, but in fact a disenfranchised majority. But that awaited the great migration by which Southern states, we have no more Black majority states in our country. By 1930, South Carolina was the last one. So they have this issue, but one of the things that becomes quite apparent in the course of the formation of Fourteenth Amendment is that the Northern white vote, which by 1865, 66 is overwhelmingly anti-slavery, that public opinion changed dramatically, substantially in favor, large majorities, even in places like Illinois and Indiana, are in favor of equal civil rights for Blacks throughout the union.

　　(10:23):

　　When the issue comes up about what about equal political rights, even in those states where Blacks form an almost insignificant minority of the voters, there is this wall that says, Hold on, not in favor of that. And in many respects, to understand American public opinion in the nineteenth, and I think really up through Jim Crow, is “Emancipation, yes–substantial kind of civil freedom, yeah–interracial marriage, interracial voting? No, thats crazy talk.” That opinion does not map onto deep principles and it doesnt map onto the principles of the actual text of the Constitution, which produces one of the distortions. In the conclusion, I point out one of the problems of the Fourteenth Amendment, I think its fair to say that Americas too racist for its own constitution or was. Whether it still is or not is a completely different question. I put those questions aside. So those are the three evils.

　　(11:20):

　　The Joint Committee on Reconstruction is formed and the committee members have all of those three problems in mind when theyre forming, deciding what to do. They decide, and the Joint Committees charge is to propose any measure basically you want that you think is necessary to establish the conditions for the admission of Southern states, the 11 seceded states into Congress. And they debate a number of measures. Early on, they come to the conclusion that some constitutional amendments are necessary, and there is at least a majority on the committee who want what we would call a civil rights measure, something for securing equal protection and something securing equal protection understood as protect us according to the standing laws that are in the South, that is to say we need security against lawless violence. And secondly, equal civil rights. And they propose a number of different measures. And the ultimate measure they propose and set before Congress on April 30, 1866, is the framework for our Fourteenth Amendment.

　　(12:24):

　　And section five is the same section five we have today. Section one is the same section one we have today, except the citizenship clause. First sentence is added later. So what the committee proposes is our due process equal protection privileges immunities clause, which reads, No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; unclear, different drafts, nor deny to any person within its jurisdiction the equal protection of the laws. Those three clauses, privileges, immunities, due process, equal protection, are the place in which a huge amount of our deeply controversial constitutional laws happens, school segregation, abortion, affirmative action, state laws on guns, on speech and religion. Usually at the end of every term now in June, we have a big Fourteenth Amendment case, at least one.

　　(13:21):

　　And that joint committee incidentally not only proposed it, but pursuant to their original mandate from Congress, House and Senate, it was a concurrent resolution, that committee submitted a formal explanation of that language. It was a very lengthy report, but the key language, which should be remembered, I think, by every law student that takes constitutional law, by every originalist in the United States, but has been largely neglected is their official explanation of what that second sentence does. It shall determine the civil rights and privileges of all citizens and all parts of the republic. That language is what those prohibitions dont abridge, dont deprive, dont deny, is supposed to establish some sort of baseline of civil rights and civil privileges throughout the entire country. It says very little, but I think it actually says a great deal, and I have a whole chapter explaining what I think what that sentence means and how the explanation is amply corroborated by lots of other originalist evidence.

　　(14:25):

　　So the Fourteenth Amendment section one, I would call it the original official explanation by the most authoritative body that participated in this, the one that was appointed by Congress to draft, and I think also appointed to explain it, determine the civil rights and privileges of all citizens and all parts to the republic.

　　James Patterson (14:43):

　　And you point out that this joint committee doesnt get a lot of notice in federal jurisprudence. It escapes notice because people are so wrapped up maybe in the politics of the cases or the priorities of different ideological groups. What is it that led people to ignore this thing?

　　David Upham (15:02):

　　In Charlie Browns Christmas, where theres a point where Charlie Brown says, Can anyone tell me what Christmas is all about? And then Linus famously comes in and reads from Lukes Gospel, Can anyone tell me what the Fourteenth Amendment is all about or reconstruction? Historians have said, Well, theres an explanation. Weve got the joint committees report on whats going on and what theyre trying to do. But American jurists have remarkably–I mean, it would be millions of pages on the Fourteenth Amendment, millions, hundreds of thousands of pages on its history, and plenty now with our current big data. One of the benefits of writing this book is Ive been able to use big data. Its not because Im a particularly diligent historian, I have bigger tools now. Almost nobody quotes that one sentence, or I should say that one phrase, which is the explanation of section one, except for interesting moments in American constitutional history, and in particular, a fellow named William Guthrie, who probably launches incorporationism, which we call today an 1898 set of speeches.

　　(16:08):

　　He quotes from it, and the most originalist Fourteenth Amendment, the strongest Fourteenth Amendment originalist on the court, Clarence Thomas did so in McDonald v. City of Chicago, which was the right to bear arms case 16 years ago. So theres something of a mystery, and I do explore it. One is maybe just from a legal historians standpoint, it just sounds like blah, blah, blah. I see this elsewhere. Well, of course you do because its a consensus account or I see things like this, but I also do speculate that if we took the language very seriously, it would require a reconsideration of much of American constitutional law and maybe a lot of the conservative originalist theories, none of which I believe provide an account that is a determinant account of all of the rights and privileges that are going to be secured in that second sentence.

　　(17:03):

　　So for whatever reason, it is a mystery, but I do think that if we are to take seriously the originalist evidence, this statement by the joint committees so formal and also so frequently cited and celebrated at the time should have pride of place in any account of the Fourteenth Amendment has to account for that evidence or at least explain away why the joint committee got it wrong.

　　James Patterson (17:32):

　　You refer to the first section of the Fourteenth Amendment with a term that I found startling, and I thought maybe you should explain now in case people have the same experience, which is you describe it as fundamentalist. What does this mean?

　　David Upham (17:51):

　　Well, it would be controversial because in some sense it looks toward American fundamentalism with had a long complex history. So its deliberately provocative in the sense, but in a strict formal sense, just as the American fundamentalists famously had sort of six things and they could say these are foundational in an effort to resist a certain kind of recent change, the authors of the Fourteenth Amendment were very hostile to what they considered to be the misconstructions of the judiciary, principally Dred Scott, but also in the context of the privileges and immunities clause, at least those that were lawyers understood that what they were doing was trying to nail something down that had been made far too loosey-goosey. Its also, of course, an answer to the fundamental division on the court between the conservatives who today who wish to define the liberties with reference to only those that are deeply rooted in our history and tradition, as opposed to the progressives on the court that have at least not acquiesced in the opinion which now commands six votes on the court because Roberts has recently joined the conservatives in saying the liberties are only those deeply rooted because the evolutionary review, which has had a place not just in Obergefell, but also in the Casey majority opinion and also in Harper v. Virginia Board of Elections where Justice Douglas says that the equalities protected by the amendment are something subject to historical change and that historical change will be identified by a majority of the Supreme Court.

　　(19:31):

　　That is to say that the Court doesnt say we make it up. The Court says, Were going to let you know whats on the agenda as already dictated by public opinion, social change, and now is the time for this liberty to be in or this equality to be in. I should mention the more radical progressives of the early twentieth century, I dont talk about this in the book except in footnotes, also understood the history sometimes takes rights out. And I point to the Olmstead dissent of Justice Brandeis who mentions that opinion and quotes with approval, Buck v. Bell. That is to say it wouldve been bad, unacceptable, but history changes and liberties, it is a flux. Kennedys opinion is less radical. Kennedys opinion in Casey and Obergefell is that the catalog gets added to but not subtracted from. History only adds rights but doesnt take them away.

　　(20:26):

　　But in any case, my claim is that it is the authors of the opinion, both the text they chose, their explanations and their motives all go in one direction, which is to restrain the courts and other authorities from erasing more or less certain clear foundational rights that are as old as the republic. But we have a country, the way the authors of the Fourteenth Amendment looked at it, reconstruction was that America because of slavery lost its marbles and started saying things contrary to the deepest American principles. And the purpose of the Fourteenth Amendment is to sweep away the junk that got added and to reaffirm and reassert so they could never be forgotten and the courts will never be able to misunderstand them, the fundamental rights and liberties of the American citizen. And so in that sense, it is fundamentalist. I know that fundamentalism carries lots of other connotations with it, and it may not be the best way to phrase it, but certainly in so far as the constitution, is it evolutionary or fundamentalism?

　　(21:36):

　　The Founders dont believe in evolving rights. They fear change because from their perspective, when the courts decided to set aside the Anglo-American definition of citizenship, they not only did grave injustice or they had decided theres a constitutional right to slavery, misinterpreting a due process clause, we needed these folks reined in. One thing thats also not noted very much to understand in the motives is that as of the spring of 1866, there are nine judges on the Supreme Court and three of them are old Dred Scott majority holdovers, and a fourth was somebody who was a big fan of Dred Scott. So you have four definite with the Courts terrible votes, and there were only three judges, Chase, Miller, and Swain, Midwestern, free soil Republicans who were what they consider reliable votes for the equal civil rights of Blacks. There was a very good reason to believe that six justices of the Supreme Court still believe that Dred Scott was rightly decided, or at least four of them, two others werent going to change it very much.

　　(22:41):

　　And so the idea that they were trying to give the Supreme Court the power to evolve, tell us what evolution is doing, everyone, Republicans and Democrats wouldve laughed. They wouldve said, No, we need to restrain the court, and this is what were doing.

　　James Patterson (22:56):

　　Theres a great phrase that you use in the same chapter, and its not just something that I thought was applicable to the Fourteenth Amendment, but just sort of the general problem of constitutionalism, and that is motive and meaning, and it is how do you get the motive for what youre trying to accomplish, the thing that you want to translate perfectly over to the language that you use? In the same chapter on the fundamentalist consensus, you talk about how sometimes the language almost falls short of what theyre trying to accomplish, and its led to this issue of this feeling that maybe the Fourteenth Amendments incoherent.

　　David Upham (23:42):

　　Yeah, so the motive and meaning the motive issue comes up, and it just came up this past term with birthright citizenship, not so much in the strict legal arguments, but in popular discussion. People will say, We all know what the Fourteenth Amendment was about. It was about to secure the rights of persons, of the freedmen and their descendants to American citizenship, and its outrageous to make it have a much greater implication. And whats important to note about the Fourteenth Amendment is the authors of the amendment did think about doing more targeted language with reference, for example, to race. A penultimate draft said, no race discrimination, and that was going to be section one. Neither the states nor the United States shall discriminate on the basis of race with respect to civil rights.” Why did they not use that language? Well, theres motives, theres explanations, but what I call their method, the method of dealing with the problems of 1866 is the committee, I think, very consciously decided, We want to go deeper.

　　(24:50):

　　We want to go right to existing clauses of the Constitution” and what I would call enhance them or fluff them up or clarify them. So instead of no race discrimination, were going to rely on the due process clause because thats already there, and the Privileges and Immunities Clause of Article 4, Section 2, and its already there, and we are going to use clarificatory or elaborating language. Now, why would that make sense from a conservative perspective? They were very eager to tell the American people that securing the rights of African Americans is not something grafted onto our constitutional order. Its not an incongruous patch, just something that doesnt fit, but will shove something onto the Constitution. They wanted to make it look organic. And I think, by the way, for what its worth, I agree with the Republicans. So in explaining and defending their account, I should be candid, its not my scholarship in the book, but I generally think that their approach is closer to the truth of our republic.

　　(25:55):

　　That is to say, I think the Fourteenth Amendment is strictly speaking a reinforcement and elaboration of principles that are deep in our regime or republic. But the point is were going to do it that way, but to go deeper, you must necessarily go broader. So Ill give you one instance. An early draft said, Well secure the immunities of citizenship, but not privileges. We know from the discussion around it that at the time, Bingham is telling people, Im enforcing the privileges and immunities clause. Why did you forget to say privileges? Dont need to talk about that because the only problem in the South is the Southern laws. Im talking about the laws, not the lawless violence, is that theyre imposing special burdens, taxes, prohibitions on African Americans, and to get rid of those immunities is what we need to do. That was an early more targeted draft.

　　(26:47):

　　But then he said “Privileges and immunities, and well make it clear that were talking about article 4.” Theres a rhetorical purpose of that, and that is to say were not really doing anything new. Were not a bunch of radicals trying to. The Democrats are all wrong. This is not a radical change to our constitution, its an organic change. But once you do that, then you open up the possibility of what are the privileges as well? What are the privileges and immunities of citizens? And it turns out that category must be much broader than simply immunity against racial discrimination or immunity against those type of unequal laws. So the conservatives who sometimes will say, The Fourteenth Amendment, Privilege and Immunities Clause, its only about equal civil rights, because thats all they were aiming at, and theyre partly right. And theyre partly right that the effect of the amendment, at least initially, it would only affect those states that have these outrageous abridgements of traditional rights of American citizens.

　　(27:43):

　　But it leaves open the possibility, for example, that if there, and this is an argument Im just opening up as a possibility, suppose one of the fundamental rights of American citizens is the right to bear arms, and suppose by the mid twentieth century, that privilege or right falls out of favor in public opinion, especially elite opinion, as just something archaic. The Fourteenth Amendment might have a hidden power to preserve certain fundamental rights, even those that seem kind of like, Really? Do we really need armed people in Americas cities? It seems thats not suitable to our republic.” So yes, the motive is one thing, and its important to understand a lot of the evidence goes to the discussion about what were doing and what its effects are going to be in 1866. But the minute they choose to go to a much deeper principle and they put it clearly and unambiguously, like birthright citizenship, it doesnt say former slaves, Nothing shall be construed in the Constitution to preclude citizenship on the basis of race or previous condition of servitude. They could have said that, but they didnt.

　　(28:48):

　　They said, Were going to try to restate existing law in a very broader sense. So it produces a constitution that for conservative reasons, in some sense, more traditionalist reasons, has a meaning that is much broader than the motive.

　　James Patterson (29:02):

　　The distinction you make later in the book that I see is linked to what you just said is the difference between a citizen of the United States and then also the Constitutions conferral of rights, that these are not the same thing. And what do you mean by that and why is that the case?

　　David Upham (29:21):

　　Well, its a huge issue in American jurisprudence, and were under the shadow of a century of dominance of positivism, namely that laws make rights. And even among many, many conservatives, they will speak about, and my friend Kurt Lash is someone I disagree with substantially on this, that the purpose of what the first ten amendments do is they create the privileges of American citizenship, so therefore constitutional enumeration is a necessary condition for the identification of rights. Of these privileges and immunities. And once one says, Well, there are rights that belong to human beings by nature” or a category that I think is underdeveloped that belong to civic membership by the nature of civic membership, that seems just like, Oh, thats just loosey-goosey natural rights talk.

　　(30:18):

　　It has no boundaries and in fact isnt true. Its not true. The authors of the Fourteenth Amendment are still living in, we might say the Middle Ages. They still believe that the human being as such has certain rights, which is already privy to him or her, of which he or she cannot be stripped without a compelling cause that is identified by this process thing called due process of law. And they also spoke about the American citizenry. And I would say that has two components, civic membership in a universal sense, but then in the way in which our tradition has defined it. The American citizen exists before the Constitution of 1787, exists before the Articles of Confederation. And so in making constitutions with respect to the privileges of citizenship, some of them dont have to necessarily be enumerated because theyre like, they should have been duh.

　　(31:21):

　　The citizen has a right to, if they leave the country, Hey, can I come back into the place where Im a citizen? Well, of course, because the territory is your territory. You live here. This caused the Supreme Court some difficulty in when the Chinese Exclusion Acts and they said, well this is before Wong Kim Ark, an obvious American citizen, the Chinese Exclusion Acts could not apply to him because hes an American. And so thats one of these kind of like the courts opinion is somewhat underdeveloped because they dont have the vocabulary once the late nineteenth century changes are occurring. But some of them are going to be simply already recognized and merely guaranteed. So from the authors of the Fourteenth Amendment, theyd say that the First Amendment freedom of speech or the right of the people to keep and bear arms, those amendments dont create those rights.

　　(32:09):

　　They recognize them, and they originally guaranteed them against federal infringement. And were going to more fully secure what is already recognized, some of which is recognized in the Constitution, some of which is not. And I would say just as someone who spends a lot of time with the Founders and up through the late nineteenth century, if you were to tell Joseph Story, for instance, that the right of the people to peaceably assemble and petition the government for redress of grievances is something that is conferred by the First Amendment, he wouldve lost his mind. He wouldve just gobsmacked by this. In fact, he even says in his commentaries, Some of these rights are so obvious its a joke theyre in the Constitution. A free people dont have to say, By the way, we have a freedom to just talk among ourselves about public affairs. And so the purpose of constitutional enumeration is a kind of just bucket of ice water occasionally necessary over the people that running public affairs, a kind of, Hey dummy, of course you cant abridge this. But since in the history of both Britain and the United States, the free people of England who did think of themselves as free by the eighteenth century and the free people of America have to reassert, have to clarify things.

　　(33:26):

　　And the Fourteenth Amendment itself was intended to be a reaffirmation. You asked me a question earlier which did go to one of the problems of their language and its revealed in a quote that the historian Joseph James found 70 years ago that he made prominent. And its a statement by, his name escapes me, writing to Sumner, a congressman from Vermont. And he says to Sumner, Do we have to enumerate them or are words like rights, privileges, and immunity sufficiently clear? Thats a critical comment which illustrates perhaps a difficulty going forward. He thought that maybe everybody and his brother knows or maybe doesnt know what privileges and immunities means. Not equal protection. Equal protection was not complicated.

　　(34:25):

　　He did not call that a difficulty, but it was equal civil rights, that privileges and immunities language that he suggested might mean we need to enumerate things like contract, et cetera.

　　(34:39):

　　Its a fairly obscure piece, but its actually a critical piece of information to anticipate our problems. Even at that time, theres this kind of fuzziness thats a little bit that was underdeveloped. And as I suggest in the conclusion, one of the things that just completely swamps it is American racism. America doesnt know how to talk about the full civil equality of African Americans in part because it will have implications for interracial marriage and interracial schools that gives rise to immediate controversies. I think the answers are in favor of integration, but theres a lot of white Americans who speak, and I quote from Shylock in Shakespeares Merchant of Venice where Shallok says, Ill walk with you. Ill talk with you. Ill do business with you. And if you know from the story, Ill even go to court with you, but I will not pray with you.

　　(35:37):

　　I will not share grandchildren with you. I will not have my children educated in that extension of the household, the common schools initially, just kind of a whole school co-op together. Thats just like, No, I wont do it. And is that line a line of principle? No, but it is a line of passion and prejudice that is not the same thing as common citizenship. And its their interracial household in the school where a Northern white opinion just says, I wont do it. And if you ask them to explain it, well, that gives rise to the whole host of all of the convolutions of Jim Crow that , and Aristotle would look at this and say, Well, this is ridiculous. Youre not common citizens if you cant intermarry and have schools together. But your constitution says youre common citizens, and maybe even your deepest sentiments say youre common citizens, but you dont want it or you arent willing to implement it.

　　(36:29):

　　And to me, thats a hypothesis. I do not prove in the book, but its hypothesis for future study why Americans will say common citizenship, but have a difficulty going a few extra steps. And they have to come up with all types of what I call just BS, which is the whole of Plessy and all those separate but equal, all this stuff. Or what they have to say is we dont actually talk about equal citizenship. We just talk about equality before the law. Equality is part of the deal, but community is what citizenship requires. And I think the nullification of the Privileges and Immunities Clause is part because citizenship implies community, not equality in separate silos, which is the official theme of Jim Crow when its defending itself.

　　James Patterson (37:20):

　　Theres a popular distinction made during the formation of Jim Crow between civil and social equality, and social equality becomes what is not part of the Fourteenth Amendment. And it is through this sort of division between the two that they then reimpose all of the inequality when they claim to support civil equality when in fact theres all these informal ways of sorting people out by racial groups and stuff. Its a very nasty business. Im sorry, thats just work Ive done.

　　David Upham (37:59):

　　Sure, sure. And thats a category. Of course the word social, a lot of these words that exist in our discussion, words like personal and social, a lot of these things that have deliberately, just utterly amorphous categories. But I will say it becomes quite clear that its a civil right when you start putting people in prison for interracial marriage. And I would also say Id want to defend the authors of the

　　Fourteenth, a little bit of Jim Crow. The Fourteenth Amendment is a partial failure, but a few things do get off the table and they stay off the table. One is formal statutes that prohibit people from engaging in property, from buying, selling land, from engaging in travel and commerce. The ability to restrict that can no longer be done through the formal legal process. And we see that even in the nadir of the early twentieth century where in Buchanan v. Warley, 1915 or ‘17, the Supreme Court unanimously strikes down a law that says that there are separate neighborhoods, white and Black neighborhoods in which people can acquire real estate in the city of Louisville.

　　(39:04):

　　From the architects of segregation, its like were just trying to have the nice segregated country. Even the Supreme Court, which is deeply segregationist at the time, its just like, cant do that, but the Fourteenth Amendment still means something. And it does have some of those things do, some of those securities and also the protection of the freedom of the churches because there were some of the Black codes that prevented people from establishing churches. So if you look at the foundations and the cultural strength of the civil rights movement, part of it does depend on some of the security established by not just emancipation by the Fourteenth Amendment, even segregated, but nonetheless, real businesses being established by African Americans and churches. And its in that kind of cultural framework that the next stage of the civil rights movement can build. So I dont want to say the Fourteenth Amendment is a complete failure.

　　(39:49):

　　It does do some substantial things, but it is partially a failure.

　　James Patterson (39:53):

　　There is an emergent strain of, I wont necessarily call it conservative, lets just call it right-wing criticism of the Fourteenth Amendment as a failed project. And by this they mean the attempt to establish equality. And you see this with the fight over the birthright citizenship case that just came down. The idea is that the Fourteenth Amendment has established a kind of right for the government to elect its own people by bringing them in. Its a little paranoid. It plays with replacement theory, but how does this book speak to this sort of emerging issue set that we find among more reactionary types on the right?

　　David Upham (40:41):

　　I would say theres two waves of this. There is a big wave in the mid-twentieth century that effectively accepts that the Fourteenth Amendment is a big blob and five, six, seven, eight votes on the Supreme Court can become the national school board, et cetera. And I think theyre mistaken. They dont have as much. Theyve read too many legal cases and they have not spent enough quality time with the authors of the Fourteenth Amendment who are far more disciplined in what theyre trying to accomplish. Ill give one example that may surprise everyone, but mid-twentieth century free speech doctrine, which goes all the way up to Brandenburg v. Ohio, which is the right to engage in lots of public racial threats of racial violence, et cetera. According to Brandenburg, effectively, unless theres a gun to somebodys head at the time of saying so, the free speech protects it.

　　(41:34):

　　The authors of the Fourteenth Amendment are far more conservative in what they wouldve considered to be protected by some of these rights. So for instance, the report of the Joint Committee on Reconstruction, one of the facts in the American South, which they identify as an indication that these states are not yet fit to representation in Congress is the fact that they allow open public mockery of the Star-Spangled Banner. Now, this may not be a free speech that a restriction that anybody today wants, but if conservatives are worried about a kind of just go for it, it means whatever the five votes say, they probably had a far more restrictive notion of what was permissible than we since the 1950s, just really since the 1960s, would allow. So in some respects, thats the Willmoore Kendall, for instance, his and many others of that criticism of the Fourteenth Amendment was that it was just bad and it was a big fat mistake and it gave the Supreme Court sort of a carte blanche to remake America.

　　(42:39):

　　On the other hand, with respect to say the birthright citizenship, I think in some respects, the amendment itself is in fact quite broad. Its broad, I think, for reasons that are prudential and not simply reckless, which I can put aside for a second, but I think conservatives who complain are entirely misplacing their objections. Regardless of what the Supreme Court says about the Fourteenth Amendment, if in fact we have a central government that will not make and enforce laws to secure our borders, the language of the first sentence of the Fourteenth Amendment, regardless how you interpret it, doesnt matter much at all. And I think 90% of what they object to can, and I think should be handled by powers that the central government does have. The problem isnt five votes on the Supreme Court, its that in some sense, we dont have a polity whose elites and many can reach a consensus about what should be our laws about the border and how they should be enforced.

　　(43:49):

　　I have my own strong opinions about this, but on the other hand, its a political reality that regardless of what the Supreme Court had said, even if they adopted the most restrictive account, wouldve done nothing to remedy the problems that the most vocal opponents have. I have a lot of opposition simply as a rule of law person to what has been going on as to what our target should be in terms of immigration policy. I probably would disagree with a lot of the reactionaries, but I have found as a lawyer what appears to me to be a kind of nullification or just simply erasure of our existing laws to be scandalous. But the Fourteenth Amendment isnt the problem with that. The problem goes to what Congress does, what the executive does, what the courts do. Lets look clearly at constitutional text, be honest about things that are clear and try to make certain things non-negotiable if at the very least for purposes of the preservation of the union and the preservation of the government.

　　(44:49):

　　So with respect to the Fourteenth Amendment, its important actually for us to see that the recent case is actually a fairly reasonable set of disagreements. Everyone knows its birth. Everyone knows the time of birth is when you count subject to the jurisdiction. Everyone knows it goes through their parents. Actually, its a remarkable consensus we should celebrate there because a lot of questions that could be debated that arent. And then we have some disagreement about what the subjection refers to. The answer from the Supreme Court, I think in the last case is something that I think people can acquiesce in, but its not crazy, its not stupid, it has support. And we should cherish those sorts of questions because the possibility of us having “three popes,” as it were, or three federal governments is not a mere hypothetical. Things get worse and a certain degree of the centrism and constitutional textualism may converge, if that makes sense.

　　James Patterson (45:42):

　　Oh, it does. And its a great note to end on. I really appreciate the reminder that these rules do a great deal to stabilize the polity and answer questions that we do not want to constantly be raising. So Dr. Upham, thank you so much for coming on to Law Liberty Podcast.

　　David Upham (46:01):

　　And thanks very much for your time. This is very enjoyable.

　　James Patterson (46:05):

　　Thanks for listening to this episode of Law Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.