El originalismo de la Enmienda Decimocuarta

Abstract

Fourteenth Amendment Originalism

This essay seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions on incorporated rights, affirmative action or federalism disputes, and yet originalist interventions in those discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent for originalists less usable history than the Founding for several reasons: the Reconstruction amendments were largely failures in their own time, the open-ended language of the Fourteenth Amendment is not well-suited to settlement of modern controversies, and the Reconstruction era holds an awkward and contested place within the national memory. These limitations, the article contends, are consistent with the notion that originalism in practice is as much an ethical as a hermeneutic project.