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11/15/2017

Gregory Maggs: A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning (49 Conn. L. Rev. 1069 (2017)) on SSRN. Here is the abstract: 

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary sources containing the legislative history are widely available online, some of them lack useful indexes and are only partially electronically searchable. In addition, statements made during the drafting and debate over the Fourteenth Amendment do not always yield clear answers to modern questions. Aggravating the situation, most lawyers, judges, law clerks, and legal scholars receive little or no instruction on how to use the documents containing the legislative history of the Fourteenth Amendment. Accordingly, they may feel unequipped either to use the legislative history to make claims about the Amendment’s original meaning or to evaluate the claims of others. Even the Supreme Court appears to have difficulty with the details. This Article seeks to improve the situation by providing a critical guide to the Amendment’s legislative history.

A important new installment in Professor Maggs' useful "Critical Guide" series.