Upham on The "Black and Tan Conventions," Diverse Originalism, and the Fourteenth Amendment

David B. Upham, St. Thomas University; Uniersity of Dallas, is publishing The "Black and Tan Conventions," Diverse Originalism, and the Fourteenth Amendment in the Mississippi Law Journal. Here is the abstract.

This essay will highlight the contributions of the biracial "Black and Tan Conventions" that drafted state constitutions pursuant to the Reconstruction Acts of 1867. I make the following conclusions: (1) that the work of these Conventions was necessary to the making of the Fourteenth Amendment, (2) that this work provides critical, if not dispositive, evidence as to that Amendment’s original meaning—especially as to what the Amendment did not prohibit—and (3) that members of the bench, bar, and academy have unjustly neglected this contribution—a neglect that has become a deafening silence among those advocating racial diversity or originalism, and the combination thereof as “diverse originalism.”

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Ristuccia on "Dangerous to the Liberties of a Free People": Secret Societies and the Right to Assemble

Nathan Ristuccia, Institute for Free Speech, is publishing 'Dangerous to the Liberties of a Free People': Secret Societies and the Right to Assemble in volume 4 of the Journal of Free Speech Law. Here is the abstract.

Americans in the eighteenth and nineteenth centuries often feared that secret assembly threatened republican government. Oath-bound secret societies were allegedly elitist cabals that would establish an imperium in imperio oppressive to ordinary citizens. Yet despite this hostility, many early Americans also insisted that freedom of assembly included the right to gather anonymously. According to this view, laws could not prohibit or excessively burden secrecy. This article, therefore, examines the discourse around secret societies both at America’s founding and at the time the Fourteenth Amendment was ratified. It demonstrates that—although there were voices on both sides of the debate—the weight of the evidence indicates that the First Amendment’s Assembly Clause originally protected the right to assemble in secret.

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Tsai on After McCleskey @robertltsai

Robert Tsai, Boston University School of Law, is publishing After McCleskey in volume 96 of the Southern California Law Review (2023). Here is the abstract.

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether. But that would be wrong and incomplete. For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision. It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith. It is also based on archival research into their case files. Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.” Instead of forsaking structural equality claims, they doubled down on them. Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it. They also scrambled to formulate reliable quantitative evidence of intentional discrimination. Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts. Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable. For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

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Bernick on Fourteenth Amendment Confrontation @evanbernick @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Fourteenth Amendment Confrontation. Here is the abstract.

Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent. This is the first Article to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery. It demonstrates that confrontation rights would emerge broader and stronger from an inquiry into their meaning in 1868. Crawford held that only “testimonial” out-of-court statements that were intended to aid the prosecution were originally understood to require an opportunity for face-to-face cross-examination of a witness. But this was not true in 1791, much less in 1868. By the time the Fourteenth Amendment was ratified, the general rule was that no out-of-court statements could be used by the prosecution to prove a defendant’s guilt absent an opportunity for prior cross-examination; and there was only one, narrow exception for dying declarations by homicide victims. Confrontation’s evolution is evinced, not only in commentaries and judicial decisions but in public arguments raised by abolitionists against the Fugitive Slave Act of 1850. Recovering this history is essential, not only to capturing confrontation’s original meaning but to realizing confrontation’s original goals today. These goals are not limited to the discovery of truth. They include protection of the dignity and liberty of even the unquestionably guilty; the provision of a fair chance to all defendants to resist punishment; and democratic contestation of the content and enforcement of criminal law. Most fundamentally, confrontation is about shifting power. Recovering this understanding would enable those most directly impacted by the U.S. criminal punishment system to resist and transform it.

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Gouzoules on The Diverging Right(s) To Bear Arms

Alexander Gouzoules is publishing The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context in volume 18 of the University of Alabama Civil Rights and Civil Liberties Law Review (2019). Here is the abstract.

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. This assumed continuity is belied by the changing roles private weaponry played in American society. This article analyzes the historical development of the ideology of private armament between 1791 and 1868. While the framers of the Second Amendment were motivated by their suspicion of professional standing armies and their preference for citizen militias, the framers of the Fourteenth Amendment harbored no such beliefs and were strongly committed to the vitality of the U.S. Army. And while the arms right established by the Second Amendment may be described as primarily embodying libertarian political principles, the arms right embodied in the Fourteenth Amendment cannot be similarly viewed. Instead, civilian armament after the Civil War served both to protect newly freed African Americans in the South and also to expropriate land from indigenous peoples in the West — two goals that envisioned close cooperation between civilians and federal authorities. These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed.

Download the article from SSRN at the link. (Correct link provided. Link in SSRN journal is incorrect).