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No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights

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Did you know the Bill of Rights did not protect you from oppressive state laws until after the Fourteenth Amendment was adopted following the Civil War? Were you aware a state could simply strip away your rights to freedom of speech, religion, press, assembly, ignore your privilege against self-incrimination or unreasonable searches and seizures, hold you without bail, beat a confession out of you, and try you without a lawyer or witnesses on your behalf? States could and did do these things. Slavery was just the most extreme deprivation of liberty that the original Constitution allowed.

Many Americans who are not trained in the law or who have not made a study of American history never learned this. As late as 1833, in a case called Barron v. Baltimore, the Supreme Court, per Chief Justice John Marshall, no less, held that the Bill of Rights applied only to the federal government - not to the states. That had been and continued to be the law until after the adoption of the Fourteenth Amendment.

Professor Curtis' book is one of the great contributions to one of the least understood (and most distorted) subjects in American history. Few lay people understand the importance of the Fourteenth Amendment and the changes it wrought after the Union victory in the Civil War. Curtis' painstaking research, informed by objectivity and fairness, refutes longstanding misconceptions about the Fourteenth Amendment which derived from the southern preoccupation with trying to rehabilitate the southern image after its defeat. The conclusions of Professors Raoul Berger and Charles Fairman are specifically called into question as it appears they may have been less thorough in their canvass of relevant historical sources. In fact, Curtis' work is probably the lynchpin in the modern interpretation of the origins (and original intent of the framers) of the Fourteenth Amendment.

This volume has received attention inversely proportional to its importance. Nevertheless, Yale law professor Akhil Reed Amar relied heavily on Curtis' work in his own excellent book on the Bill of Rights, published in 1998. As Curtis shows, Rep. John A. Bingham, a well-trained Ohio lawyer (who also served on the commission that investigated Lincoln's assassination and the conspiracy that produced it), was instrumental in making sure the Bill of Rights would, for the most part, apply to the states so there would be a minimum standard of protection for civil liberties that no state could ever again transgress. Thus, being an American finally meant something: no longer would the individual rights (that the federal government had to observe) be taken in vain as states simply stripped those rights away and trampled on them - which they did with impunity prior to and immediately after the Civil War. This is a fine history of one of the most important legal developments ever to occur in the history of the United States.

Having just read many neo-originalist works on the 14th Amendment, I really can't praise this book highly enough. Curtis is thorough, fair, tolerant of ambiguity, and remarkably free of "presentist" blinders. He carefully traces the ideological context of the 14th amendment, the sources its framers drew on in crafting its language, and the beliefs of the legislators who debated it. In the process, he reveals the unfortunate misuses to which history has been put in interpreting the amendment over the years. Curtis's lucid and straightforward style and skill at making sense of complex events are a refreshing contrast to many of the commentators and historians who have drawn upon his work.

Having just read many neo-originalist works on the 14th Amendment, I really can't praise this book highly enough. Curtis is thorough, fair, tolerant of ambiguity, and remarkably free of "presentist" blinders. He carefully traces the ideological context of the 14th amendment, the sources its framers drew on in crafting its language, and the beliefs of the legislators who debated it. In the process, he reveals the unfortunate misuses to which history has been put in interpreting the amendment over the years. Curtis's lucid and straightforward style and skill at making sense of complex events are a refreshing contrast to many of the commentators and historians who have drawn upon his work.