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Articles by Kurt Lash
Becoming the "Bill of Rights": The First Ten Amendments from Founding to Reconstruction
The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption.
The State Citizenship Clause
The first sentence of the Fourteenth Amendment declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, is a citizen of the United States and of the state wherein they reside.” This opening sentence contains not one, but two citizenship clauses. The first defines national citizenship. The second defines state citizenship.
A Crust of Bread: Religious Resistance and the Fourteenth Amendment
Abstract In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment.
The Meaning and Ambiguity of Section Three of the Fourteenth Amendment
The Fourteenth Amendment established the constitutional conditions for the readmission of those states which had attempted to secede from the Union during the American Civil War. Section Three of that amendment, when enforced under the powers granted by Section Five, prevented the leaders of the recent rebellion from returning to Congress, holding any state level office, or receiving any appointment by Democrat President Andrew Johnson, absent congressional permission.
Speech to the Women’s Rights Convention, Assembled in Worcester, MA (1851)
Summary Married women’s property rights were a key goal of women’s rights activists, as indicated in the Declaration of Sentiments (1848). But the first married women’s property acts had little to do with women’s rights; they were passed in the wake of the panic of 1837 as a way of putting family property into women’s names to shield it from their husbands’ creditors. Activists had a hand in the passage of later legislation in other states, including New York (1848) and Pennsylvania (1848).
The Reconstruction Amendments
Introduction to Volume 2 Part 1. The Fourteenth Amendment A. Drafting Introduction to Part 1A The Thirty-Ninth Congress: Membership 1. US Senate, Opening Day of Thirty-Ninth Congress (Dec. 4, 1865) 2. US House, Opening Day of Thirty-Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction (Dec. 4, 1865) 3. US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865) 4. US House, John Bingham, Proposed Amendment (Dec. 6, 1865) 5.
Section Three and the "First Insurrection" ... That Wasn't
| [Prof. Kurt Lash (Richmond), who is a leading legal historian of the Fourteenth Amendment, was kind enough to pass along this response to an amicus brief by Profs. Akhil Reed Amar (Yale) and Vikram David Amar (Illinois) in Trump v. Anderson, and I'm delighted to have it published here. As readers of the blog know, several of our bloggers have expressed their own views on the case, which are quite different from each other, and I'm very glad that the blog provides a forum for those competing views.
The Fourteenth Amendment's Ambiguous Section Three – Kurt T. Lash
The current effort to disqualify Donald Trump under Section Three of the Fourteenth Amendment makes for high-stakes politics, but bad history. Section Three of the Fourteenth Amendment disqualified certain people from serving in the House or Senate, or as a presidential elector, if they had betrayed their oath of fealty to the United States and joined the rebellion during the American Civil War.
The Federalist and the Fourteenth Amendment-- Publius in Antebellum Public Debate, 1788-1860
Abstract "The Federalist Papers occupy a unique place among historical discussions of the federal Constitution. Internationally famous as a work of political science, the essays of “Publius” have particular importance to American constitutional theorists who seek to understand the historical meaning of the federal Constitution.
"Roe and the Original Meaning of the Thirteenth Amendment" by Kurt T. Lash
Abstract The current debate over Roe v. Wade as a substantive due process right has prompted scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery” and “involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy.
The State-Citizenship Clause and the Colorblind Constitution
If a state chooses to provide a certain opportunity for its citizens, it cannot condition or diminish that right due to an applicant citizen's race.
McCulloch v. Madison: John Marshall's Effort to Bury Madisonian Federalism
Home > Law > Law Faculty Publications > 1628 Abstract "In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices.
Voluntary Restraint and the Wormhole Effect" by Kurt T. Lash
Abstract "In 1992, Patrick Buchanan ignited a firestorm of controversy when he exhorted the crowd at the Republican National Convention to join him in a holy war-a war of Christian values and a battle for the soul of America.' Critics of Buchanan's speech and other similar attempts to inject religion into politics raised questions of political morality: When, if ever, is it appropriate for a citizen in a liberal democracy to invoke the judgment of God in support of specific policy initiatives?
Meghan Markle's Court Apology Will Fuel Piers Morgan But She May Still Win-Experts
Meghan Markle's apology for misleading an English court could embolden her critics, such as Piers Morgan, but—however uncomfortable—may not cost her the case, experts have told Newsweek. The Duchess of Sussex sued The Mail on Sunday in October 2019 for publishing a letter she sent her father, Thomas Markle, and more than two years later the suit continues.
The Ninth Amendment and the Right of Local Self-Government
Excerpted from a brief of Prof. Lash as Amicus Curiae in support of petitioners in Dobbs v Jackson Women’s Health Organization The Ninth Amendment guarantees the right of local self-government in all matters not expressly prohibited to the states or clearly delegated to the federal government.
The Reconstruction Amendments
Introduction to the Collection Part 1. The Antebellum Constitution Volume 1 Introduction to Part 1 A. Foundational Documents 1. The Declaration of Independence (July 4, 1776) 2. The Northwest Ordinance (July 13, 1787) 3. The Constitution of the United States and the First Twelve Amendments (1787–1804) B. Federalism and the Structure of Antebellum Constitutional Liberty Introduction to Part 1B 1. The Federalist, No. 32 (Hamilton) (Jan. 3, 1788) 2. The Federalist, No. 33 (Hamilton) (Jan. 3, 1788) 3.
Researching and Teaching the Thirteenth, Fourteenth and Fifteenth Amendments
The Reconstruction Amendments: Essential Documents (2 Volumes) presents researchers, students and judges an unprecedented opportunity to investigate the original public understanding of the Thirteenth, Fourteenth and Fifteenth Amendments. For the first time, scholars have a word-searchable collection of speeches, debates and publications relating to the framing and ratification of the three Reconstruction Amendments.
: Framing and Ratifying the Fourteenth and Fifteenth Amendments: “The Reconstruction Amendments: Essential Documents,” Vol. 2
One of the most extraordinary moments in American constitutional history occurred on December 4, 1865. On this, the opening day of the Thirty-Ninth Congress, congressional Republicans made the extraordinary decision to refuse admission to representatives from the former Confederate States. The bewildered southern representatives were left standing in the aisles, their pleas to be recognized by the Chair ignored.
The Reconstruction Amendments: Essential Documents, a Follow-up to The Founders’ Constitution
University of Chicago Press has just published "The Reconstruction Amendments: Essential Documents," a two-volume collection of original historical documents relating to the framing, ratification and public understanding of the Thirteenth, Fourteenth and Fifteenth Amendments to the American Constitution. Prior to this publication no such collection existed.
An Incomplete Introduction to the Fourteenth Amendment
Scholars seeking to master commentary on the original meaning of Section One of the Fourteenth Amendment confront a bewildering array of theories and schools of thought.
“Contextualizing” Jefferson
Statue of Thomas Jefferson at the Jefferson Memorial (Br... more The University of Virginia Board of Visitors has decided to add “context” to the statue of Thomas Jefferson near the University Rotunda. Their decision comes on the heels of a similar decision by a Washington D.C. task force to “remove, relocate or contextualize” the Jefferson Memorial in the nation’s capital. Removal and relocation of the Jefferson Memorial are unlikely.
Woody Allen's Disappointments - Law & Liberty
The funniest man in Hollywood in 50 years has finally published his autobiography at 84. But Woody Allen’s Apropos of Nothing was almost stifled. It was scandalously pulped by Hachette before being picked up by the smaller Arcade Publishing. A publisher attempted to destroy a book just because hysterical wokies from Allen’s son, Ronan Farrow, on down wanted it destroyed. Moralism triumphed over decency and appreciation for comedy.
Living with Risk
It is a commonplace to say that America has become polarized politically. This observation is certainly confirmed by the current divide over pandemic lockdowns. Half the country appears to believe that ending the lockdowns will result in millions of deaths from disease. The other half believes that keeping the lockdowns in place will result in millions of deaths from starvation.
Faithless Electors and Faithful Judges
Two cases argued this month, Chiafalo v. Washington and Colorado Department of State v. Bacca, pose the most important questions this term for originalism. They concern the ability of presidential electors in the Electoral College to exercise their own legal discretion in the choice of President. In the first case, Washington has fined Mr. Chiafalo for refusing to vote for Hillary Clinton, the candidate to whom he was pledged.
Overcoming the Dilemma of Religious Liberty
Stained Glass window depicting Saint Thomas Aquinas (122... more To have one’s book, much less one’s first book, reviewed by a scholar of the stature of Steven Grosby is no small honor. Whatever Professor Grosby’s ultimate judgment of the work, it is flattering that he would take the time to read it.
Origins of the Politicized Confirmation
Robert Bork, in his book, The Tempting of America(1989), noted that it was a perverse method of civic engagement in a constitutional republic to have demonstrators outside of the Supreme Court. Bork rightly viewed such seemingly innocuous demonstrations as the pathological behavior that results from the politicization of the courts. The Court has become, as the late legal historian David O’Brien termed it, the “storm center” of much of American politics.
Old Man Eloquent
At the unveiling of Frederick Douglass’ statue in the Capitol building in 2013, several Republican members of Congress wore buttons that read “Douglass Was a Republican.” In 2020, as part of his campaign for the Democratic presidential nomination, Pete Buttigieg announced a plan to assist black Americans, which he dubbed the Douglass Plan. That both conservatives and liberals should seek to identify themselves with Frederick Douglass is hardly surprising.
Nostalgia for the Smoke-Filled Room
Eitan Hersh, an associate professor of political science at Tufts University, mourns the passing of the smoke-filled room. Well into the 20th century—and right up through 1968 in the late Democratic Mayor Richard J. Daley’s machine-politics Chicago—there was no such thing as simply deciding to run for public office and then amassing the money and organization to put together a campaign, à la Donald Trump, Bernie Sanders, or Pete Buttigieg.
Life of a Dissident
When Karol Wojtyła was elected as the new Pope on October 16, 1978, it was not only the start of a 26-year journey in which St. John Paul II became one the most influential figures of the 20th century; in many respects, it was also the beginning of a “revolution of conscience,” as George Weigel has called it, which would ultimately bring down the Soviet Empire in 1989.
Restoring the Dignity of Politics
Hannah Arendt changed my life. She taught me how to think deeply about the world. Her work helped me to recognize the many contradictions between how I have understood it and its reality. Reading Arendt, I grasped, for the first time, the essential difference between freedom and being ruled.
The Lectio Divina of the Murder Monks
In F. Scott FitzGerald’s The Great Gatsby, the eyes of Doctor T.J. Eckleburg overlook the Valley of Ashes on a billboard. It is often argued that this symbolizes God and perhaps even His judgment on America’s moral decay. In Season 6 of Amazon’s Bosch, the Hollywood Sign plays a similar role: nestled above Los Angeles, the sign looks down upon our West Coast version of the Valley of Ashes.
The Basic Decency of Republican Self-Government
Five years after his passing, George W. Carey’s project—the recovery of constitutional republicanism against decades of revisionism—has assumed new urgency. Carey never fawned over the likes of Madison, but neither could he abide facile denunciations of them. Thus the title he gave to Liberty Fund’s invaluable collection of some of his best essays: In Defense of the Constitution.
With the Old Breed
I’ve been reading With the Old Breed, Eugene Sledge’s classic account of his experiences in the battles of Peleliu and Okinawa. Many have come to know his story from the successful 2010 HBO Series The Pacific that relied in part on his diary of these two battles. Sledge enlisted for the duration of the war +6 months in 1943 and, owing to his intelligence, was part of a military training program at Georgia Tech.
Business Education and the Humanities
Harvard Business School (Jorge Salcedo/Shutterstock). The question before us, whether business schools and business majors ought to include a serious exposure to the humanities in their programs of study, would appear to be an open-and-shut case. Of course they should. The humanities concern themselves with our human natures in their totality, and with the Lebenswelt in which those natures operate.
Business Needs the Humanities to Succeed
A man rides in a Tesla 3 in autopilot mode outside Ralei... more What is the second-best reason for studying the humanities in business school? We hope you already know the best reason: to understand what it means to be human, how to live a good life, how to be an informed and thoughtful citizen, and so on. These are the questions that we begin to grapple with in our formative years, and then return to in our contemplative ones decades later.
Honoring the Moral Purpose of Business
Business has a bad reputation. “It’s just business” is often code for “I’ll take what’s mine and the devil can take the hindmost,” and the villain of Hollywood movies is often a sinister CEO or shadowy cabal of wealthy businesspeople manipulating the world for their own selfish benefit. Profit is almost as dirty a word as capitalism.
Finding Metaphysics in Our Postmodern World
In the Preface to his Dostoevsky Reads Hegel in Siberia and Bursts into Tears, László Földényi cites Theodor Adorno’s and Max Horkheimer’s comment that “the Enlightenment, while claiming to expose everything as a myth, itself towered over everything as a colossal unavoidable myth.” This remark captures the essence of Földényi’s collection of essays: the necessity and inevitability of a metaphysics that goes beyond the rationalism of the enlightenment—a metaphysics that might look a lot like...
Frederick Douglass's 'Plea for Freedom of Speech'
Frederick Douglass & Kurt T. Lash, Law & Liberty August 23, 2019 On December 3, 1860, a group of abolitionists, including Frederick Douglass, gathered at a public meeting hall in Boston, Massachusetts, to discuss “How Can American Slavery be Abolished?” Scheduled to coincide with the one-year anniversary of John Brown's death (what abolitionists referred to as the “martyrdom” of John Brown), the meeting took place only a month after the election of the Republican Abraham Lincoln.
Frederick Douglass's "Plea for Freedom of Speech in Boston" - Law & Liberty
Introduction by Kurt Lash On December 3, 1860, a group of abolitionists, including Frederick Douglass, gathered at a public meeting hall in Boston, Massachusetts, to discuss “How Can American Slavery be Abolished?” Scheduled to coincide with the one-year anniversary of John Brown’s death (what abolitionists referred to as the “martyrdom” of John Brown), the meeting took place only a month after the election of the Republican Abraham Lincoln.
Frederick Douglass's "Plea for Freedom of Speech in Boston"
Introduction by Kurt Lash On December 3, 1860, a group of abolitionists, including Frederick Douglass, gathered at a public meeting hall in Boston, Massachusetts, to discuss “How Can American Slavery be Abolished?” Scheduled to coincide with the one-year anniversary of John Brown’s death (what abolitionists referred to as the “martyrdom” of John Brown), the meeting took place only a month after the election of the Republican Abraham Lincoln.
The Enumerated Rights Reading of the Privileges or Immunities Clause: A Response to Randy E. Barnett and Evan D. Bernick's "A Critique of Kurt Lash on the Fourteenth Amendment"
Home > Law > Law Faculty Publications > 1558 Abstract In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York.
Enforcing the Rights of Due Process: The Original Relationship between the Fourteenth Amendment and the 1866 Civil Rights Act
For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause.
John Bingham: Father of the 14th Amendment
John Bingham was one of the most influential but least known visionaries of the post-Civil War Constitution. Dubbed “the James Madison of the 14th Amendment” by Justice Hugo Black, Bingham drafted a constitutional provision that changed the course of American history by ensuring that states were duty-bound to uphold their citizens’ constitutional rights.
Originalism and Fixing the Fourteenth Amendment
April 26, 2023 16 min read Download Report Kurt Lash E. Claiborne Robins Distinguished Chair in Law at the University of Richmond School of Law Summary Our model of the Fourteenth Amendment is in need of repair.
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