Rediscovering the Fourteenth Amendment
I find that blogging is useful for three things. First, you can try out new ideas and see how people react. Second, you can react to current events in real time. Third, you can talk about old ideas that did not get enough attention the first time around. (Call this “Broadway revival” blogging.)
In that spirit, let me mention this paper of mine from a few years on the relationship between Jackson’s removal of the Cherokees from Georgia and the Fourteenth Amendment. The piece argues that part of the original understanding of the Amendment was shaped by its framers support for Native American rights and disgust at the “Trail of Tears.” For example, John Bingham cited Worcester v. Georgia more than once as a benchmark for interpreting Section One of the Amendment. Obviously, there were distinctions made between African-Americans and Native Americans in that text, as tribes with treaty relations with the United States were excluded from birthright citizenship under its “subject to the jurisdiction” clause. Nevertheless, there are important interpretive resources to be found in the law and practice concerning Native Americans leading up to 1868 (on the antidiscrimination principle, positive economic rights, and more traditional individual rights). After Brown, the legal community concluded that the Fourteenth Amendment’s history was basically unhelpful. That is a mistake that more scholars should examine.