Annual Boden Lecture: Ernest A. Young and David A. Strauss

Description

Dying Constitutionalism and the Fourteenth Amendment

A “living Constitution” is a familiar—if still contested—notion in American constitutional theory. That notion often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees. What can grow can also wither and die.

In this year’s Boden Lecture, marking the Fourteenth Amendment’s sesquicentennial, Professor Ernest Young will assess that amendment’s history as a test case for living constitutionalism. For much of its early history, the Fourteenth Amendment’s meaning was powerfully shaped by social movements and evolving social mores. But these forces—in particular, the recalcitrance of white supremacy in both South and North, the strong desire of white Americans to reunify the country after the Civil War, and the transformation of “free labor” ideals into a limit on government regulation of the market—overwhelmed the Fourteenth Amendment’s central concern with racial uplift and diverted its notion of civil liberty into quite different channels. If the Fourteenth Amendment was originally understood as a charter of liberty and equality for black Americans, then its early history is an instance of “dying constitutionalism.”

This lecture will explore how the Fourteenth Amendment got so off track, how it got back on track in the late twentieth century, and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution’s core commitments in the face of social change. As part of this effort, Professor David Strauss—a preeminent scholar of living constitutionalism—will offer a commentary on Professor Young’s lecture.