by Bryan H. Wildenthal (originally published June 2025, 112 Journal of American History 164, republished here in revised and expanded form, December 12, 2025)
(See Copyright & Permissions Note on Vita & Contact page. This revised version of the review, to which I retain copyright, is a non-commercial derivative work in accordance with the publication license policy of Oxford University Press, which publishes the Journal of American History.)
Reviewing Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Harvard University Press, 2021) (available for purchase here).
This major new study by Barnett & Bernick joins a short list of truly insightful books on the 14th Amendment (1868), second of the post-Civil War amendments that reconstructed our Constitution even as the Reconstruction era attempted to reboot our nation.
Academic historians sometimes look askance at law professors like Barnett or Bernick who venture into their domain. Yet illuminating the history of the U.S. Constitution has, in truth, required a village of historians, lawyers, and scholars in many fields.
Traditionally credentialed (Ph.D.) historians have made crucial contributions to the study of Reconstruction’s impact on the law. Those are best represented by Eric Foner’s magnificent summation of his work in The Second Founding (2019).
But it took a deaf law librarian, Howard Jay Graham, and a blind law professor, Jacobus tenBroek, working from the 1930s to the 1960s — generations before Foner’s main work — to frame our modern understanding of this subject.
Leonard Levy’s foreword to Graham’s 1968 magnum opus, Everyman’s Constitution, opined that “too few historians … read the law journals” (p. viii).
This reviewer, a law professor who dabbles in Reconstruction history, would concede it’s equally true that too few of us keep up with historians, political scientists, or sociologists like Pamela Brandwein, author of Rethinking the Judicial Settlement of Reconstruction (2011).
Barnett & Bernick set an admirable example, generously citing and engaging the army of scholars who have trodden this ground before.
To cite a more few examples (in addition to works by Foner, Graham, tenBroek, and Brandwein), their book calls to mind No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986), by practicing lawyer Michael Kent Curtis (who later joined academia), and the work of law professors Earl Maltz, Civil Rights, the Constitution, and Congress (1990), Rebecca Zietlow, Enforcing Equality (2006), and Kurt Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014).
Barnett, a constitutional originalist, is generally viewed as a conservative libertarian. Bernick is part of a younger wave of originalist scholars who often seem to defy political labels.
It is unfortunate that originalism has been crudely and unfairly demonized by many on the political Left as merely a cynical tool of the political Right.
Like any theory or philosophy of constitutional interpretation, originalism certainly can be (and has been) misused. Even so, it is in fact a “big tent” encompassing more than a few unabashed liberals, including this reviewer and (by many indications) Justice Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court.
Different aspects of Barnett & Bernick’s study will please those on both the Left and the Right.
They endorse (pp. 29, 206–10) the idea promoted in dissents by the elder Justice John Marshall Harlan (studied most effectively by Curtis) that the 14th Amendment protects (at a minimum) the textual guarantees of the Bill of Rights against state and local violations (a proposition strongly supported by modern scholarship). See, most notably, Harlan’s powerful lone dissent in Maxwell v. Dow (1900) and the Court’s landmark modern decision in Ramos v. Louisiana (2020).
Barnett & Bernick may both excite and alarm readers across the political spectrum with suggestions (pp. 29–30, 219–58) that the 14th Amendment also protects some natural and civil rights (including economic liberties) not specified in the text or even necessarily known in 1868.
It is to Barnett’s credit as the senior and much better known scholar of the two that he was willing to partner with a younger scholar like Bernick who (as it turns out) vehemently disagrees with him on some issues central to the 14th Amendment.
Compare, for example, Barnett (and a different co-author) on the issue of birthright citizenship with Bernick’s powerful critique of the Trump administration’s attempt to upend time-honored law on that subject. (This reviewer’s stance aligns with Bernick’s.) See also Bernick’s stinging attack (with two co-authors) on the positions Barnett and other scholars have taken on this issue in the present political context.
Barnett’s and Bernick’s recent essays on birthright citizenship were published this year. It is curiously telling in hindsight that their 2021 book skirts the issue.
The book includes two chapters on the development of constitutional ideas of citizenship among pre-Civil War abolitionists (ch. 3, pp. 89–108), and during the war itself (ch. 4, pp. 109–27), but fails to explain the obvious: how that cashed out in the plain text of the 14th Amendment that was a central product of the Union victory in the war.
It devotes a central, lengthy, and very important chapter to enforcing the rights of citizenship (ch. 6, pp. 156–204), without reviewing or clarifying who is entitled to be a citizen in the first place.
The book appears to contain only two fleeting discussions of birthright citizenship: on p. 99 (discussing views of Lysander Spooner and Joel Tiffany, who both favored it) and p. 322 (discussing Sir Edward Coke‘s view of British law, also favoring it); compare p. 459 (index entry referencing only those two pages).
That’s fine. This may simply reflect one of several ways in which this book — while impressively magisterial and comprehensive in many ways — is necessarily, like all scholarship, a tentative work in progress.
Most intriguingly, Barnett & Bernick (like Brandwein, for example) urge us to rethink the “state action” doctrine (pp. 33–38, 230–32, 319–71). In sympathy with Harlan’s lone dissent in the Civil Rights Cases (1883), they suggest the 14th Amendment, and Congress’s power to enforce it, venture surprisingly far into “public” but “nongovernmental” behavior (p. 231).
Unlike Harlan’s dissents in the Bill of Rights cases (where his view was sometimes supported by a few other 19th-century justices), or his lone dissent in the state-sponsored segregation case of Plessy v. Ferguson (1896), his 1883 dissent has never been vindicated by the modern Court. On the contrary, as recently as 2000, the Court’s widely condemned 1883 ruling was expressly reaffirmed in a 5–4 decision that has also garnered well-deserved criticism.
So this is provocative stuff.
Barnett & Bernick provide ample fodder for disagreement. They stumble into occasional errors. Their analysis is not always persuasive. But it is consistently thoughtful.
No one can responsibly carry on these debates or pursue further study of the 14th Amendment without carefully reading and considering this landmark book.
The Skeptical Professor 