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.”

Download the article from SSRN at the link.

Plambeck on The Constitutional History of the Free Elections Clause @unc_law

Charles Plambeck, University of North Carolina School of Law, is publishing The Constitutional History of the Free Elections Clause in volume 103 of the North Carolina Law Review. Here is the abstract.

Many state constitutions contain a Free Elections Clause that requires that "elections ought to be free." The function of these clauses is to prevent disenfranchisement through gerrymandering and other tactics. This paper traces the origins of this phrase to the constitutional settlement of 1688, and before that to the First Statute of Westminster of 1275. The 750 year history shows the vitality of the clause to present day voting rights contests.

Download the article from SSRN at the link.

Sanders on Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War

Anthony B. Sanders, Institute for Justice, is publishing Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War in the Mercer Law Review. Here is the abstract.

Although there is controversy on the original meaning of the Ninth Amendment, there should be no controversy on the original meaning of Ninth Amendment analogs in state constitutions, otherwise known as the “Baby Ninths.” This Article examines the history of the states’ adoption of Baby Ninths before the Civil War. It includes an analysis of the parallel history of what I call “Baby Tenths,” state constitutional provisions exempting state bills of rights out of the power of government. From these, and other, sources I demonstrate that Baby Ninths only make sense as judicially enforceable provisions that protect unenumerated individual rights.

Download the article from SSRN at the link.