The 14th Amendment at 150: America’s Second Founding
On September 21, 2018, the Institute for Justice’s Center for Judicial Engagement joined with the Liberty & Law center at the Antonin Scalia Law School to host a symposium. This symposium brought together legal scholars, historians, and litigators to discuss and debate the 14th Amendment’s history, meaning, and future. Along with discussion and debate the George Mason Law Review published a special edition of their law journal featuring the submissions of many participants.
Kurt Lash set the stage for the day by describing the challenges facing the nation at the end of the Civil War.
This first panel explored the issues, challenges, and personalities central to the congressional and ratification fights to adopt the 14th Amendment. The Hon. Justice Patrick Wyrick of the Oklahoma Supreme Court moderated the discussion between Timothy Sandefur of the Goldwater Institute and Professors Anderson B. Francois, Martha Jones, and Gerard N. Magliocca.
The second panel explored the Privileges or Immunities Clause’s origin, purposes, meaning, and contemporary legal disputes. The Hon. Judge Don. R. Willett of the Fifth Circuit moderated the discussion between Ilya Shapiro of the Cato Institute, Anthony Sanders of the Institute for Justice, and Professors Josh Blackman, Robert J. Cottrol, and Rebecca E. Zietlow.
The third panel explored the debates over the history and meaning of the Due Process Clause, and contemporary applications of the Clause to modern disputes. The Hon. Judge Elizabeth L. Branch of the Eleventh Circuit moderated the discussion between Professors Evan D. Bernick, David Bernstein, Katie Eyer, and Christopher Green.
The fourth panel was a rearguing of the Slaughter House Cases. The “judges” were the Hon. Judge Douglas H. Ginsburg of the D.C. Circuit, the Hon. Judge Timothy M. Tymkovich of the Tenth Circuit, and the Hon. Dale Wainwright a former Justice on the Texas Supreme Court. The lawyers presenting the arguments were the Hon. Elbert Lin the former Solicitor General of West Virginia and the Hon. Dominic Draye, the Solicitor General of Arizona.
The fifth and final panel of the Symposium looked ahead to the next 25 years of 14th Amendment litigation and how Justice Kennedy’s departure affects how the Supreme Court will interpret the 14th Amendment. The Hon. Judge David R. Stras of the Eighth Circuit moderated the discussion between Dana Berliner of the Institute for Justice, Brianne J. Gorod of the Constitutional Accountability Center, John Malcolm of the Heritage Foundation, and Samuel Spital of the N.A.A.C.P. Legal Defense Fund.
Papers generated by this event
David E. Bernstein, Class Legislation, Fundamental Rights, and the Origins of Lochner and Liberty of Contract.
Howard Gillman, What Is, and Isn’t, Currently Disputed About Lochner Era Police Powers Jurisprudence (a response to David E. Bernstein), 26 Geo. Mason L.R. 1049 (2018-19).
Anthony B. Sanders, “Privileges and/or Immunities” in State Constitutions Before the Fourteenth Amendment.
Evan D. Bernick, Optimizing the Oxymoron: Substantive Due Process Justice Thomas Could Love.
Christopher R. Green, Our Bipartisan Due Process Clause.
Ilya Shapiro & Josh Blackman, The Once and Future Privileges or Immunities Clause.