Latest work. Welcome Randy Barnett evan bernick. Its wonderful to be here with you. Im great really glad to be having a conversation about your amazing. Amazing new book, which ive got. Ive got right here. Hope we can just jump right right into it. Well, its great great for of you to do this. We really appreciate you doing this and im looking forward to the were about to have. I as well. Im looking forward to it. Im sure that were going to have a lot of fun. But what really really my pleasure is going to be mine. Its um, this is a book. I really encourage people to go out and get it and take a look. I cant think of a better cutting edge introduction to this fascinating and controversial thing called original plane original public meaning constitutionalism. Weve got things like a blowbyblow of the drafting of the 14th amendment we have an amazing and wonderful introduction to the growing historical literature on antislavery constitutionalism, which is so decisive from the were still today shaped by the 1840s and 50s and this is a book that helps readers. See see that and its a book and this is really what i hope we we talk about a lot here is its a book that says that nearly everything we know about some of the key sections of section 1 and section 5 of 14th amendment is all wrong, so id love to to get into some of that with with you here. Is a place i thought we might start and i hope ill be interested to see what whether you think. This is a the premise of this question is right, you know when i think about originalism and of course, theyre now many originalisms in this flourishing and controversial space when i think of originalisms, i think of philadelphia, i think of 1787 and maybe its not a philadelphia cheesesteaks and tasty cakes are principal parts of my diet. And so i think about 1787 James Madison james wilson the founders in that 18th century sense. Tell me what it meant for you guys to write a book that was about originalism but took reconstruction as its central as its central topic. Well, what did that mean . Whats it significance . Id love to know more about that. Well, i first became a familiar with antislavery constitutionalism some 15 or 20 years ago. I had a guggenheim fellowship and i decided to develop myself to familiarizing myself with this. I originally knew about one guy in particular lysander spooner, but then i discovered that he had a whole cohort of people he was interacting with including Frederick Douglass and how complicated and how sophisticated their arguments their constitutional arguments were and but i did it on a lark i did it just because i was independently interested in i didnt actually think it was going to connect up with anything that i was doing as a constitutional law professor, but then when evan and i started collaborating on the work on the original meeting the 14th amendment it was quite obvious and in fact i even article published in the journal of legal analysis, which was about each and every word and each and every clause in the 14th amendment and how the antecedents of those clauses lie in antislavery constitutionalism. But when evan and i started working on it what we needed to take account of was the degree to which the Republican Party which was the successor party from the Liberty Party than the Free Soil Party and eventually the Republican Party as an antislavery party had taken on board many of these arguments not all of them, but many of these arguments and essentially and then eventually enshrined them into the text of the constitution itself in section 1 of the 14th amendment and i think getting back to your original point about when you think of originalism you think of the founding, i think that is been unfortunately all too true of originalist generally and that is that we all talk about the founding and wilson and and madison and morris and all the rest of them as though our constitutional texts stopped there, but in fact it didnt and we all are familiar with some of the moral defects of the founding which were quite serious but our constitutional history preceded a pace and gave rise to the story that we tell in our book that ultimately culminates in an amendment to the constitution. So, let me just define for the listeners what i think originalism is it is the proposition that the meaning of the constitution should remain the same until its properly changed. By amendment the meaning of the constitution should remain the same until its properly changed by amendment and our book is about a 14th amendment which does properly change the original meaning of the constitution. So for me the question of why we should Pay Attention to the antebellum contestation over slavery and the history of reaper reconstruction is a twofold reason first just for the sake of integrity as an originalist if you want to understand the meaning of the text that was ratified into the constitution in 1868. It would be who you to Pay Attention to the first few decades of the 19th century rather than taking a razor sharp focus just on the period from 1788 to 1791. The seconds reason is because it is in my view a moral obligation on the parts of constitutional scholars judges members of the bar to recognize the degree to which focusing exclusively on that 1788 to 1791 period effectively erases the greatest mass movements in the history of our country and arguably what the possible exception of the haitian revolution the greatest Liberatory Movement in the entire world a slaveholding republics power its grasp over all three branches of governments was smashed at the very peak of that power for the first several presidencies of our country. We had a congress and we had a presidency in significant part because of structural features that bolster the representation of slaveholders. Overtly, deliberately furthering slaveholding projects both at home and increasingly abroad with an eye too making the United States a slave Holding Power on par with the supposedly great slaveholding republics like brazil like brazil and other countries. This was not just a fever dream. This was an active program that was designed to spread slavery as the preferred form of organized labor over the entire world and thats whole movements and its grip on the political structure of our country was dismantled. It didnt mean the ends of racial subjugation as the experience of reconstruction the ultimate defeat of reconstruction. Thanks in significant parts of the Supreme Court demonstrated, but it meant for a few glorious years we had with web de poies referred to as abolition democracy two branches of the federal government deliberately turning institutions that have been used to dominate and subjugate to liberation to protecting black people against physical violence increasing Economic Opportunity protecting civil rights and gradually including and excluded people into our social order. This is a remarkable achievement in World History and the way that our current constitutional law approaches the 14th amendment. It is history that is considered for practical purposes almost entirely irrelevant. So both methodologically and morally we can do better and book is dedicated to that proposition. Well, im emphatically not originalist, but all the things you guys say really resonate with me. You know the movement from slavery to Something Like freedom and maybe we should get into that at some point during this conversation is is one of the most important social moral transformations in in World History certainly in the history of the United States and so for sure your Core Principles of these reconstruction amendments and the 14th may be in particular are should be at the heart of our constitution. So lots of agreement. Maybe my non not being an originalism will make some it for some interesting pieces as we move through but here heres a question that arises out of your effort really serious and deep effort to figure out what that social and moral transformation means for our constitution today. You guys leave some things out of the fourteenth amendment in your account of it and selfconsciously you tell the reader right up front so you leave out for the most part the citizenship. That leads off the first section of the 14th amendment and then youre not interested in this book in section two of the 40th amendment which was designed to produce an electorate. That would be Something Like the electorate of the full male population of the south right controversially adds the gender specific pronoun, and its designed to prevent white Southern States from excluding black men from from Voting Rights you leave out Section Three and section 4 as well, maybe less important now but still about structure of the electorate and governance the internal governance of the of the United States. Why did you leave those things out and i guess the reason i asked to put my cards on the table is im wondering whether leaving those things out. Changes the nature of the 14th amendment and the lessons of reconstruction that we might think we see in the amendment. Well, as you know from having looked at the book, its pretty long as it is and the and so that by itself is a justification to not do any more work particularly on provisions of the text that are not currently a subject of constitutional adjudication or litigation. So the sections two three and four are just not litigated. I mean there are there actually are some appeals to it occasionally, but theyre really idiosyncratic what we really what what modern constitutional law is based on is section one of the 14th amendment and misreadings of section one on the 14th amendment has led to misreadings of section 5 which empowers congress to enforce section one, so i guess the real reason the main reason i would say that is that section one of the 14th amendment or is the most important constitutional amendment that the American People have never heard of and governed this since having written the book and i tell friends and acquaintances or or people and offices that im visiting that i wrote a book on the 14th amendment and they and they say, im sorry. I just dont know what amendment that is and yet every challenge to a state law based on the First Amendment freedom of speech the First Amendment free exercise of religion the Second Amendment right to keep and bear arms all of the socalled bill of rights challenges almost all of the bill of rights challenges that we argue about are actually 14th amendment cases, and i think that fully justifies focusing only on section one and then also on section 5, i do think we we do to talk considerably about citizenship. However, in fact, i think focusing on the citizenship clause and im going to ask and ill have evan say a little more about this focusing on the citizenship clause really helps inform what the privileges or immunities of citizens of the United States are because essentially what the 14th amendment enshrined was what we call republican concept of republic. In citizenship, and if you understand what republican citizenship was that will go a long ways to figuring out what the 14th amendment was supposed to protect and i think if its okay, i think maybe evan can talk a little bit more about that. Sure, but before i do just to address the question of why we didnt focus our energy is on the middle provisions the middle sections of the 14th amendments. My short answer would be that if the Supreme Court had systematically undermined those provisions with the same dedication that it had done section one and section 5 we might have to write another book and also professor mark graber has anticipated any such effort by dedicating an entire book to the proposition. This is going to be coming at relatively soon that professors bernick and barnett have entirely focused too much energy on sections one and five and neglected the the intervening section. So we look forward to that debate sections two through four really are important to understanding that the 14th amendment was a political amendment it was designed to entrench and place beyond any doubt in the constitution a can a broad inclusive conception, although not maximally inclusive conception of citizenship and to individual rights of all people from depredation, but it was also designed to ensure that institutional structures were in place to ensure that a party that was committed to that vision of citizenship and was committed to that kind of protect baseline protection for all people would remain in power. We dont deny that but we recognize that this is an act of high political morality that genuinely does affect a transformation in the what had been initially a 1788 constitution. That did not define citizenship and left to antebellum forces contesting over slavery to disagree about just what came with being included as a member of the polity. Did it simply mean that one had the right to to travel to other states and take ones chances with respect to what states what liberties the citizens of those states enjoyed with respect to what expect to be protected or did you were you entitled to have confidence who ever you were if you were born a naturalized or naturalized in the United States and you traveled throughout the country you could ensure that certain fundamental rights that were necessary to the protection of your liberty and your and civic equality visavis other citizens were consistently respected. That was the contest that was ultimately resolved in favor of what randy has referred to as republican citizenship at a concept that began its germination within abolitionist circles, but then was then taken up modified somewhat by republicans and embedded in the constitution as a commitment beyond any doubts to this inclusive conception of citizenship grounded and fundamental rights and civic equality together with a commitment to empowering an institution specifically congress to legislate on behalf of those civil rights and check that civic equality in ways that the original constitution or the 1788 constitution had fallen short of doing. Well, one of the one of the things about republican citizenship and this is maybe why i asked my question about things that were left out and of course, you know books cant get too long. So im hugely sympathetic as i would be book writer myself. I i get that but the republican citizenship has at least two components one component, which you guys bring out really powerfully and creatively and controversially at times which i hope will im sure well get into you really bring out effectively the individual right side of republican citizenship. So the parts about being a citizen that are about holding off the overweaning power of the state and making sure theres a space for individual liberty. That you bring out really well. I wonder though if leaving out other parts including, you know, a citizenship clause and then section two in particular as i say leaves out the other side of republican citizenship, which is really about the citizen participating in selfgovernance and democratic democratic selfgovernance, and so part of what the civil war and reconstruction are to me which means part of what antislavery constitutionalism is for me is the empowerment of the state and of democratic selfgovernance to change the world in which we live and that that would be empowering state governments empowering the federal government delivering new authority and i worry a little bit to be honest that leaving out those sections. Mmm redirects the book makes it a book about individual liberty when actually the 14th amendment is a whole new constitution on both sides of the ledger. So my response to that is that republican citizenship. Is not a term that is designed to refer to like the best understanding of republicanism and as understood as a commitment to selfgovernance the protection of individual rights democratic representation as it has developed in the literature and Political Science and with respect to also the development of the abolitionist development of abolitionist thoughts. It is a claim that there was at a particular point in time a Republican Party that ascended to power and had a specific understanding of citizenship and wed endeavor to unpack exactly what that was. We are very clear that contrary to speaking for myself my own republican small r commitments republican citizenship did not recognize the fundamental nature of Voting Rights at the time that the 14th amendment was ratified into law. Quite this was not because it just never occurred to anybody thats in order to build a citizenship worthy of the name. You needed political rights. But it does recognize that the voices that called for that kind of republican citizenship. Were at that point in time in history, regretfully marginalized and people like that stevens and jacob howard and the countless freed ppl who participated in what are now an actress mystically referred to as the colored peoples conventions and called specifically for Voting RightsVoting RightsVoting Rights, give us suffrage or give us nothing. Did not get everything that they wanted and did not give us everything that speaking from my own normative perspective. I would have wanted to see. One of the things that randy and i tried to do throughout this book is to separate what we think. Are considered reflection on what the evidence weve uncovered shows from what we would do all Things Considered. Were not committed to telling people that because the historical record has fallen short of our normative aspirations. We should neglect to acknowledge the underside even of the basic concept of citizenship the basic concept of citizenship draws a distinction between members of the polity and the other in ways that as a matter of politic